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1 

V 

I 

• 

I 


Jlohu 


IN  TME  CUSTODY  OF  THE 

BOSTON     PUBLIC   LIBRARY. 


COMMENTARIES 

ON     THE 

LAW      S 

O  F 

ENGLAND. 

•i     •         * 

BOOK    THE     FIRST. 


B  Y 


WILLIAM     BLACKSTONE, 

VINERIAN    PROFESSOR    OF    LAW, 


AND 


SOLICITOR    GENERAL    TO    HER    MAJESTY. 


THE     THIRD     EDITION. 


OXFORD, 

PRINTED    AT    THE    CLARENDON    PRESS. 
M.  DCC.  LXVIII. 


"ADAMS 


> 


TO 
THE  QUEEN'S  MOST  EXCELLENT  MAJESTY, 

THE    FOLLOWING    VIEW 
OF    THE    LAWS    AND    CONSTITUTION 

OF    ENGLAND, 
THE  IMPROVEMENT  AND  PROTECTION  OF  WHICH 

HAVE   DISTINGUISHED   THE  REIGN 
OF    HER    MAJESTY'S    ROYAL    CONSORT,, 

IS, 

WITH  ALL   GRATITUDE  AND  HUMILITY, 
MOST    RESPECTFULLY    INSCRIBED 

BY    HER    DUTIFUL 

AND    MOST    OBEDIENT 

SERVANT, 


WILLIAM   BLACKSTONE, 


PREFACE. 


^  I  ^HE  following  fleets  contain  the  fubftance  of  a 
A  courfe  of  leElures  on  the  laws  of  England,  which 
were  read  by  the  author  in  the  univerfity  of  OXFORD. 
His  original  plan  took  it's  rife  in  the  year  1753  :  and, 
notwithjlanding  the  novelty  of  fitch  an  attempt  in  this  age 
and  country,  and  the  prejudices  ufually  conceived  againft 
any  mnovations  in  the  ejlablifhed  mode  of  education,  he  had 
the  fatisfaStion  to  find  (a?id  he  acknowleges  it  with  a  mix- 
ture of  pride  and  gratitude)  that  his  endeavours  were 
encouraged  and  patronized  by  thofe,  both  in  the  wiiverfay 
and  out  of  it,  whofe  good  opinion  and  efteem  he  was  prin- 
cipally defirous  to  obtain* 

THE  death  of  Mr  Vi  N  E  R  in  1756,  and  his  ample 
benefaction  to  the  univerjity  for  promoting  the  ftudy  of  the 
law,  produced  about  two  years  afterwards  a  regular  and 
public  eftablifoment  of  what  the  author  had  privately  un- 

a  der  taken. 


11 


PREFACE. 


dertaken.  The  knowlege  of  our  laws  and  constitution  was 
adopted  as  a  liberal  fcience  by  general  academical  autho- 
rity ;  competent  endowments  were  decreed  for  the  fupport 
of  a  lefturer,  and  the  perpetual  encouragement  of  Jludents; 
and  the  compiler  of  the  enfuing  commentaries  had  the  ho- 
nour to  be  elected  the  firft  Vinerian  profejjor. 

IN  this  fituation  he  was  led,  both  by  duty  and  incli- 
nation^ to  inveftigate  the  elements  of  the  /aw,  and  the. 
grounds  of  our  civil  polity ',  with  greater  ajjiduity  and  at- 
tention than  many  have  thought  it  neceffary  to  do.  And 
yet  ally  who  of  late  years  have  attended  the  public  admi- 
niftration  of  juftice,  muft  be  fenfible  that  a  majlerly  ac- 
quaintance with  the  general  fpir it  of  laws  and  the  prin- 
ciples of  unroeffal  jur  if  prudence,  combined  with  an  accu- 
rate knowlege  of  our  own  municipal  conftitutions,  their 
original^  reafon,  and  hiftory,  hath  given  a  beauty  a?id 
energy  to  many  modern  judicial  decisions,  with  which  our 
anceftors  were  wholly  unacquainted.  If,  in  the  purfuit  of 
thefe  inquiries,  the  author  hath  been  able  to  reElify  any  er- 
rors which  either  himfelf  or  others  may  have  heretofore 
imbibed,  his  pains  will  be  fujficiently  anfwered :  and,  if 
in  fome  points  he  is  ftill  miflaken,  the  candid  and  judi- 
cious reader  will  make  due  allowances  for  the  difficulties  of 
a  fearch  fo  new,  fo  extenfive,  and  Jo  laborious. 

THE 


PREFACE. 


in 


T  H  E  labour  indeed  of  thefe  refearches,  and  of  a  re- 
gular attention  to  his  duty,  for  a  feries  of  fo  many  years ', 
he  hath  found  inconjiftent  with  his  health,  as  well  as  his 
other  avocations  :  and  hath  therefore  defired  the  univerfi- 
tys  permijjion  to  retire  from  his  office,  after  the  conclufwn 
of  the  annual  courfe  in  which  he  is  at  prefent  engaged. 
But  the  hints,  which  he  had  collected  for  the  tife  of  his 
pupils,  having  been  thought  by  feme  of  his  more  experien- 
ced friends  not  wholly  unworthy  of  the  public  eye,  it  is 
therefore  with  the  lefs  reluftame  that  he  now  commits  them 
to  the  prefs  :  though  probably  the  little  degree  of  reputa- 
tion, which  their  author  may  have  acquired  by  the  candor 
of  an  audience  (a  teft  widely  different  from  that  of  a  de- 
liberate perufal)  would  have  been  better  confulted  by  a 

total  fupprejjion  of  his  lectures ;  had  that  been  a 

matter  intirely  within  his  power. 

FOR  the  truth  is,  that  the  prefent  publication  is  as 
much  the  effect  of  necejfity,  as  it  is  of  choice.  The  notes 
which  were  taken  by  his  hearers,  have  by  fome  of  them 
(too  partial  in  his  favour)  been  thought  worth  revifing 
and  tranfcribing ;  and  thefe  tranfcripU  have  been  fre- 
quently lent  to  others.  Hence  copies  have  been  multiplied, 
in  their  nature  imperfect,  if  not  erroneous ;  fome  of  which 
have  fallen  into  mercenary  hands,  and  become  the  object 

a   2  of 


IV 


PREFACE. 


of  clandeftine  fale.  Having  therefore  fo  much  reafon  to 
apprehend  a  furreptitious  imprejjton^  he  chofe  rather  to 
fubmit  his  own  errors  to  the  world^  than  to  feem  anfwer- 
able  for  thofe  of  other  men.  And^  with  this  apology ',  he 
commits  himfelf  to  the  indulgence  of  the  public. 

2  Nov.  1765. 


CONTENTS. 


INTRODUCTION. 

SECT.     I. 
On  the  STUDY  of  the  LAW.  Page  j. 

SECT.     II. 
Of  the  NATURE  of  LAWS  in  general.  38. 

SECT.     III. 
Of  the  LAWS  of  ENGLAND.  63. 

SECT.     IV. 
Of  the  COUNTRIES  Jubjett  to  the  LAWS  of  ENGLAND.       93* 

BOOK     I. 
Of    the    RIGHTS    of    PERSONS. 

CHAP.     I. 
Of  the  abfolute  RIGHTS  ^INDIVIDUALS.          1 21*. 

C  H  A  Ev 


CONTENTS. 

CHAP.     II. 
Of  the  PA  RLIAMENT,  146. 

CHAP.     III. 
Of  the  KING,   and  his  TITLE.          190. 

CHAP.     IV. 
Of  the  KING'*  royal  FAMILY.  219. 

CHAP.    V. 
Of  the  COUNCILS  belonging  to  the  KING,     227. 

CHAP.    VI. 
Of  the  KING'J  DUTIES.  233. 

CHAP.    VII. 
Of  the  KING'J  PREROGATIVE.          237. 

CHAP.     VIII. 
Of  the   KING'J  REVENUE.  281. 

CHAP.     IX. 
Of  fubordinate  MAGISTRATES.  338. 

CHAP.     X. 

Of  the  PEOPLE,  whether  ALIENS,  DENIZENS, 

or  NAT  i  v  E  s.  3°°* 

CHAP. 


CONTENTS. 

CHAP.     XI. 
Of  the  CLERGY.  376. 

CHAP.     XII. 
Of  the  CIVIL  STATE.  396. 

CHAP.     XIII. 
Of  the  MILITARY  and  MARITIME  STATES.     407. 

CHAP.     XIV. 
Of  MASTER  and  SERVANT.          422. 

CHAP.     XV. 
Of  HUSBAND  and  WIFE.  433. 

CHAP.     XVI. 
Of  PARENT  and  CHILD.  446. 

CHAP,     XVII. 
Of  GUARDIAN   and  WARD.  460. 

CHAP.     XVIII. 
Of  CORPORATIONS.  467. 


COMMENTARIES 


ON     THE 


LAWS     OF     ENGLAND. 


INTRODUCTION. 


SECTION     THE      FIRST. 


ON      THE     STUDY     OF      THE     LAW.  * 


MR  VICE-CH  ANC  ELLOR,  AND   GENTLEMEN   OF  THF 
UNIVERSI  TV, 


E  general  expectation  of  fo  numerous  and  re- 
fpedtable  an  audience,  the  novelty,  and  (I  may 
add)  the  importance  of  the  duty  required  from  this 
chair,  muft  unavoidably  be  productive  of  great  dif- 
fidence and  apprehenlions  in  him  who  has  the  ho- 
nour to  be  placed  in  it.  He  mufl  be  fenfible  how  much  will  de- 
pend upon  his  conduct  in  the  infancy  of  a  ftudy,  which  is  now 
firft  adopted  by  public  academical  authority;  which  has  generally 
been  reputed  (however  unjuftly)  of  a  dry  and  unfruitful  nature; 
and  of  which  the  theoretical,  elementary  parts  have  hitherto  re- 
ceived a  very  moderate  mare  of  cultivation.  He  cannot  but  re- 
flect that,  if  either  his  plan  of  inftruction  be  crude  and  injudi- 
cious, or  the  execution  of  it  lame  and  fuperficial,  it  will  caft  a 
damp  upon  the  farther  progrefs  of  this  moil  ufeful  and  mofl  ra- 
tional branch  of  learning  ;  and  may  defeat  for  a  time  the  public- 

*  Read  in  Oxford  at  the  opening  of  the  Vinerian  leftures ;  25  Oft.  1758. 

A  2  fpirited 


4  On      the      S  T  U  D  Y  I  NT  ROD. 

fpirited  defign  of  our  wife  and  munificent  benefactor.  And  this 
he  muft  more  efpecially  dread,  when  he  feels  by  experience  how 
unequal  his  abilities  are  (unaffifted  by  preceding  examples)  to 
complete,  in  the  manner  he  could  wifh,  fo  extenfive  and  arduous 
a  talk ;  fince  he  freely  confelfes,  that  his  former  more  private 
attempts  have  fallen  very  fhort  of  his  own  ideas  of  perfection. 
And  yet  the  candour  he  has  already  experienced,  and  this  laft 
tranfcendent  mark  of  regard,  his  prefent  nomination  by  the  free 
and  unanimous  fuffrage  of  a  great  and  learned  univerfity,  (an 
honour  to  be  ever  remembered  with  the  deepeft  and  moft  affec- 
tionate gratitude)  thefe  teftimonies  of  your  public  judgment  muft 
entirely  fuperfede  his  own,  and  forbid  him  to  believe  himfelf  to- 
tally infufficient  for  the  labour  at  leaft  of  this  employment.  One 
thing  he  will  venture  to  hope  for,  and  it  certainly  mall  be  his 
conftant  aimj  by  diligence  and  attention  to  atone  for  his  other 
defects ;  efteeming,  that  the  bed  return,  which  he  can  poffibly 
make  for  your  favourable  opinion  of  his  capacity,  will  be  his 
unwearied  endeavours  in  fome  little  degree  to  deferve  it. 

TH  E  fcience  thus  committed  to  his  charge,  to  be  cultivated, 
methodized,  and  explained  in  a  courfe  of  academical  lectures,  is 
that  of  the  laws  and  conftitution  of  our  own  country  :  a  fpecies 
of  knowlege,  in  which  the  gentlemen  of  England  have  been 
more  remarkably  deficient  than  thofe  of  all  Europe  befides.  In 
moft  of  the  nations  on  the  continent,  where  the  civil  or  imperial 
law  under  different  modifications  is  clofely  interwoven  with  the 
municipal  laws  of  the  land,  no  gentleman,  or  at  leaft  no  fcholar, 
thinks  his  education  is  completed,  till  he  has  attended  a  courfe  or 
two  of  lectures,  both  upon  the  inftitutes  of  Juftinian  and  the 
local  conftitutions  of  his  native  foil,  under  the  very  eminent  pro- 
feffors  that  abound  in  their  feveral  univerfities.  And  in  the  nor- 
thern parts  of  our  own  ifland,  where  alfo  the  municipal  laws  are 
frequently  connected  with  the  civil,  it  is  difficult  to  meet  with  a 
perfon  of  liberal  education,  who  is  deftitute  of  a  competent 
knowlege  in  that  fcience,  which  is  to  be  the  guardian  of  his 
natural  rights  and  the  rule  of  his  civil  conduct. 

NOR 


§.  i.  of   the    L  A  w.  5 

NOR  have  the  imperial  laws  been  totally  neglected  even  in 
the  Englifh  nation.  A  general  acquaintance  with  their  decilions 
has  ever  been  defervedly  confidered  as  no  fmall  accompliihment 
of  a  gentleman  ;  and  a  fafhion  has  prevailed,  efpecially  of  late, 
to  tranfport  the  growing  hopes  of  this  ifland  to  foreign  univerfi- 
ties,  in  Switzerland,  Germany,  and  Holland ;  which,  though 
infinitely  inferior  to  our  own  in  every  other  confideration,  have 
been  looked  upon  as  better  nurferies  of  the  civil,  or  (which  is 
nearly  the  fame)  of  their  own  municipal  law.  In  the  mean  time 
it  has  been  the  peculiar  Lot  of  our  admirable  fyftem  of  laws,  to 
be  neglected,  and  even  unknown,  by  all  but  one  practical  pro- 
fefiion ;  though  built  upon  the  foundeft  foundations,  and  appro- 
ved by  the  experience  of  ages, 

FA  R  be  it  from  me  to  derogate  from  the  ftudy  of  the  civil 
law,  confidered  (apart  from  any  binding  authority)  as  a  collection 
of  written  reafon.  No  man  is  more  thoroughly  perfuaded  of  the 
general  excellence  of  it's  rules,  and  the  ufual  equity  of  it's  deci- 
fions,  nor  is  better  convinced  of  it's  ufe  as  well  as  ornament  to 
the  fcholar,  the  divine,,  the  ftatefman,  and  even  the  common 
lawyer.  But  we  muft  not  carry  our  veneration  fo  far  as  to  facri- 
fice  our  Alfred  and  Edward  to  the  manes  of  Theodofius  and  Juf- 
tinian  :  we  muft  not  prefer  the  edict  of  the  praetor,  or  the  re- 
fcript  of  the  Roman  emperor,  to  our  own  immemorial  cuftoms, 
or  the  fanctions  of  an  Englifh  parliament ;  unlefs  we  can  alfo 
prefer  the  defpotic  monarchy  of  Rome  and  Byzantium,  for  whofe 
meridians  the  former  were  calculated,  to  the  free  conftitution  of 
Britain, -which  the  latter  are  adapted  to  perpetuate, 

WITHOUT  detracting  therefore  from  the  real  merit  which 
abounds  in  the  imperial  law,  I  hope  I  may  have  leave  to  aflert, 
that  if  an  Englishman  muft  be  ignorant  of  either  the  one  or  the 
other,  he  had  better  be  a  ftranger  to  the  Roman  than  the  Englifh 
inft.it uti on s.  For  I  think  it  an  undeniable  pofition,  that  a  com- 
petent knowlege  of  the  laws  of  that  fociety,  in  which  we  live, 

is 


6  Qn    the    S  T  u  D  Y  IN  TROD. 

is  the  proper  accomplishment  of  every  gentleman  and  fcholar ; 
an  highly  ufeful,  I  had  almoft  faid  effential,  part  of  liberal  and 
polite  education.  And  in  this  I  am  warranted  by  the  example  of 
antient  Rome  ;  where,  as  Cicero  informs  us%  the  very  boys  were 
obliged  to  learn  the  twelve  tables  by  heart,  as  a  carmen  neceffdrium 
or  indifpenfable  leflbn,  to  imprint  on  their  tender  minds  an  early 
knowlege  of  the  laws  and  conflitutions  of  their  country. 

B  u  T  as  the  long  and  univerfal  neglect  of  this  ftudy,  with  us 
in  England,  feems  in  fome  degree  to  call  in  queftion  the  truth  of 
this  evident  pofition,  it  mail  therefore  be  the  buiinefs  of  this  in- 
troductory difcourfe,  in  the  firft  place  to  demonftrate  the  utility  of 
fome  general  acquaintance  with  the  municipal  law  of  the  land, 
by  pointing  out  it's  particular  ufes  in  all  confiderable  fituations  of 
life.  Some  conjectures  will  then  be  offered  with  regard  to  the 
caufes  of  neglecting  this  ufeful  ftudy  :  to  which  will  be  fubjoin- 
ed  a  few  reflexions  on  the  peculiar  propriety  of  reviving  it  in  our 
own  univerfities. 

AND,  firft,  to  demonftrate  the  utility  of  fome  acquaintance 
with  the  laws  of  the  land,  let  us  only  reflect  a  moment  on  the 
fmgular  frame  and  polity  of  that  land,  which  is  governed  by  this 
fyftem  of  laws.  A  land,  perhaps  the  only  one  in  the  univerfe, 
in  which  political  or  civil  liberty  is  the  very  end  and  fcope  of  the 
constitution b.  This  liberty,  rightly  underftood,  confifts  in  the 
power  of  doing  whatever  the  laws  permit c ;  which  is  only  to  be 
effected  by  a  general  conformity  of  all  orders  and  degrees  to  thole 
equitable  rules  of  action,  by  which  the  meaneft  individual  is  pro- 
tected from  the  infults  and  oppreffion  of  the  greateft.  As  there- 
fore every  fubject  is  interefted  in  the  prefervation  of  the  laws,  it 
is  incumbent  upon  every  man  to  be  acquainted  with  thofe  at  lealt, 
with  which  he  is  immediately  concerned  ;  left  he  incur  the  cen- 
fure,  as  well  as  inconvenience,  of  living  in  fociety  without  know- 
ing the  obligations  which  it  lays  him  under.  And  thus  much 

a  De  Lcgg.  z.  23.  c  Facuhas  ejus,  quod  cuique  facert  libet,  ntji 

b  Monteiq.  Efp.  L.  1.  II.  c.  5.  quid <vi,  ant  jure  prohibetur.    Injl.  1,3.  I. 

may 


§.  i.  of   the    L  AW.  7 

may  fuffice  for  perfons  of  inferior  condition,  who  have  neither 
tirhe  nor  capacity  to  enlarge  their  views  beyond  that  contracted 
fphere  in  which  they  are  appointed  to  move.  But  thofe,  on  whom 
nature  and  fortune  have  beftowed  more  abilities  and  greater  lei- 
fure,  cannot  be  fo  eafily  excufed.  Thefe  advantages  are  given 
them,  not  for  the  benefit  of  themfelves  only,  but  alib  of  the  pub- 
lic :  and  yet  they  cannot,  in  any  fcene  of  life,  difcharge  properly 
their  duty  either  to  the  public  or  themfelves,  without  fome  de- 
gree of  knowlege  in  the  laws.  To  evince  this  the  more  clearly, 
it  may  not  be  amifs  to  defcend  to  a  few  particulars. 

LET  us  therefore  begin  with  our  gentlemen  of  independent 
eftates  and  fortune,  the  moft  ufeful  as  well  as  considerable  body 
of  men  in  the  nation ;  whom  even  to  fuppofe  ignorant  in  this 
branch  of  learning  is  treated  by  Mr  Locke  d  as  a  ftrange  abfur- 
dity.  It  is  their  landed  property,  with  it's  long  and  voluminous 
train  of  defcents  and  conveyances,  fettlements,  entails,  and  in- 
cumbrances,  that  forms  the  moft  intricate  and  moft  extenlive  ob- 
ject of  legal  knowlege.  The  thorough  comprehenfion  of  thefe,, 
in  all  their  minute  diftin&ions,  is  perhaps  too  laborious  a  tafk 
for  any  but  a  lawyer  by  profeffion  :  yet  ftill  the  understanding  of 
a  few  leading  principles,  relating  to  eftates  and  conveyancing, 
may  form  fome  check  and  guard  upon  a  gentleman's  inferior 
agents,  and  preferve  him  at  leaft  from  very  grofs  and  notorious 
impolition. 

AGAIN,  the  policy  of  all  laws  has  made  fome  forms  necef- 
fary  in  the  wording  of  laft  wills  and  teftaments,  and  more  with 
regard  to  their  atteftation.  An  ignorance  in  thefe  muft  always  be 
of  dangerous  confequence,  to  luch  as  by  choice  or  neceflity  com- 
pile their  own  teftaments  without  any  technical  affiftance.  Thofe 
who  have  attended  the  courts  of  juftice  are  the  beft  witnefTes  of 
the  confufion  and  diftrefles  that  are  hereby  occafioned  in  families  ; 
and  of  the  difficulties  that  arife  in  difcerning  the  true  meaning 

d  Education.  §.  187. 

Of 


8  On    the    S  T  u  D  Y  IN  TROD, 

of  the  teitator,  or  fometimes  in  difcovering  any  meaning  at  all  : 
to  that  in  the  end  his  eftate  may  often  be  vetted  quite  contrary  to 
thefe  his  enigmatical  intentions,  becaufe  perhaps  he  has  omitted 
one  or  two  formal  words,  which  are  neceffary  to  afcertain  the 
fenfe  with  indifputable  legal  precifion,  or  has  executed  his  will 
in  the  prefence  of  fewer  witneffes  than  the  law  requires. 

BUT  to  proceed  from  private  concerns  to  thofe  of  a  more 
public  confideration.  All  gentlemen  of  fortune  are,  in  confe- 
quence  of  their  property,  liable  to  be  called  upon  to  eftablim  the 
rights,  to  eftimate  the  injuries,  to  weigh  the  accufations,  and 
fometimes  to  difpofe  of  the  lives  of  their  fellow-fubjects,  by  fer- 
ving  upon  juries.  In  this  fituation  they  have  frequently  a  right 
to  decide,  and  that  upon  their  oaths,  queftions  of  nice  importance, 
in  the  folution  of  which  fome  legal  fkill  is  requifite ;  efpecially 
where  the  law  and  the  fact,  as  it  often  happens,  are  intimately 
blended  together.  And  the  general  incapacity,  even  of  our  beft 
juries,  to  do  this  with  any  tolerable  propriety  has  greatly  debafed 
their  authority ;  and  has  unavoidably  thrown  more  power  into 
the  hands  of  the  judges,  to  direct,  control,  and  even  reverfe 
their  verdicts,  than  perhaps  the  constitution  intended. 

BUT  it  is  not  as  a  juror  only  that  the  Englim  gentleman  is 
called  upon  to  determine  queftions  of  right,  and  diftribute  juftice 
to  his  fellow-fubjects  :  it  is  principally  with  this  order  of  men 
that  the  commiffion  of  the  peace  is  rilled.  And  here  a  very  ample 
field  is  opened  for  a  gentleman  to  exert  his  talents,  by  maintain- 
ing good  order  in  his  neighbourhood ;  by  punilhing  the  diffolute 
and  idle ;  by  protecting  the  peaceable  and  induftrious  ;  and, 
above  all,  by  healing  petty  differences  and  preventing  vexatious 
profecutions.  But,  in  order  to  attain  thefe  defirable  ends,  it  is 
neceffary  that  the  magiftrate  Should  understand  his  bufinefs ;  and 
have  not  only  the  will,  but  the  power  alfo,  (under  which  muft 
be  included  the  knowlege)  of  adminiftring  legal  and  effectual 
juftice.  Elfe,  when  he  has  miftaken  his  authority,  through  paf- 
fion,  through  ignorance,  or  abfurdity,  he  will  be  the  object  of 

contempt 


§.  r.  of   the    LA  w.  9 

contempt  from  his  inferiors,   and  of  cenfure  from  thofe  to  whom 
he  is  accountable  for  his  conduct. 

YET  farther;  moft  gentlemen  of  confiderable  property,  at 
fome  period  or  other  in  their  lives,  are  ambitious  of  reprefenting 
their  country  in  parliament :  and  thofe,  who  are  ambitious  of 
receiving  fo  high  a  truft,  would  alfo  do  well  to  remember  it's 
nature  and  importance.  They  are  not  thus  honourably  diftin- 
guifhed  from  the  reft  of  their  fellow-fubjefts,  merely  that  they 
may  privilege  their  perfons,  their  eftates,  or  their  domefticsj 
that  they  may  lift  under  party  banners ;  may  grant  or  with-hold 
fupplies  j  may  vote  with  or  vote  againft  a  popular  or  unpopular 
adminiftration ;  but  upon  confiderations  far  more  interefting  and 
important.  They  are  the  guardians  of  the  Englifli  conftitution; 
the  makers,  repealers,  and  interpreters  of  the  Englifli  laws ; 
delegated  to  watch,  to  check,  and  to  avert  every  dangerous  in- 
novation, to  propofe,  to  adopt,  arid  to  cherifh  any  folid  and  well- 
weighed  improvement  j  bound  by  every  tie  of  nature,  of  honour, 
and  of  religion,  to  tranfmit  that  conftitution  and  thofe  laws  to 
their  pofterity,  amended  if  poffible,  at  leaft  without  any  dero- 
gation. And  how  unbecoming  muft  it  appear  in  a  member 
of  the  legiflature  to  vote  for  a  new  law,  who  is  utterly  igno- 
rant of  the  old  !  what  kind  of  interpretation  can  he  be  en- 
abled to  give,  who  is  a  ftranger  to  the  text  upon  which  he. 
comments ! 

INDEED  it  is  perfectly  amazing,  that  there  fliould  be  no  other 
ftate  of  life,  no  other  occupation,  art,  or  fcience,  in  which  fome 
method  of  inftruclion  is  not  looked  upon  as  requifite,  except  only 
the  fcience  of  legiflation,  the  nobleft  and  moft  difficult  of  any. 
Apprenticeships  are  held  necefTary  to  almoft  every  art,  commer- 
cial or  mechanical :  a  long  courfe  of  reading  and  ftudy  muft 
form  the  divine,  the  phyfician,  and  the  practical  profeffor  of  the 
laws  :  but  every  man  of  fuperior  fortune  thinks  himfelf  born  a 
legiflator.  Yet  Tully  was  of  a  different  opinion  :  "  it  is  necei- 

B  "  fary, 


io  On    the    S  T  u  D  Y  I  N  T  R-O  D. 

"  fary,  fays  he  a,  for  a  fenator  to  be  thoroughly  acquainted  with 
"  the  conftitution ;  and  this,  he  declares,  is  a  knowlege  of  the 
"  mod  extenfive  nature ;  a  matter  of  fcience,  of  diligence,  of 
"  reflexion ;  without  which  no  fenator  can  poffibly  be  fit  for  his 
«  office." 

THE  mifchiefs  that  have  arifen  to  the  public  from  inconfide- 
rate  alterations  in  our  laws,  are  too  obvious  to  be  called  in  quef- 
tion ;  and  how  far  they  have  been  owing  to  the  defective  educa- 
tion of  our  fenators,  is  a  point  well  worthy  the  public  attention. 
The  common  law  of  England  has  fared  like  other  venerable  edi- 
fices of  antiquity,  which  rafh  and  unexperienced  workmen  have 
ventured  to  new-drefs  and  refine,  with  all  the  rage  of  modern  im- 
provement. Hence  frequently  it's  fymmetry  has  been  deftroyed, 
it's  proportions  diftorted,  and  it's  majeftic  fimplicity  exchanged 
for  fpecious  embellishments  and  fantaftic  novelties.  For,  to  fay 
the  truth,  almoft  all  the  perplexed  queftions,  almoft  all  the  nice- 
ties, intricacies,  and  delays  (which  have  fometimes  difgraced  the 
Englifh,  as  well  as  other,  courts  of  juftice)  owe  their  original 
not  to  the  common  law  itfelf,  but  to  innovations  that  have  been 
made  in  it  by  acts  of  parliament;  "overladen  (as  fir  Edward 
"Coke  exprefles  itf)  with  provifoes  and  additions,  and  many 
"  times  on  a  fudden  penned  or  corrected  by  men  of  none  or  very 
"  little  judgment  in  law."  This  great  and  well- experienced  judge 
declares,  that  in  all  his  time  he  never  knew  two  queftions  made 
upon  rights  merely  depending  upon  the  common  law  j  and 
warmly  laments  the  confufion  introduced  by  ill-judging  and  un- 
learned legiflators.  "  But  if,  he  fubjoins,  acts  of  parliament  were 
"  after  the  old  famion  penned,  by  fuch  only  as  perfectly  knew 
"  what  the  common  law  was  before  the  making  of  any  act  of 
"  parliament  concerning  that  matter,  as  alfo  how  far  forth  for- 
"  mer  ftatutes  had  provided  remedy  for  former  mifchiefs,  and 
"  defects  difcovered  by  experience ;  then  mould  very  few  quef- 

c  De  Legg.  3.18.     Eft  fetiatari  neccjjarium    f.ne  quo  paratus  effi  fenalor  nullo  fafio  pclejl. 
noffe  remfublicam  \   idqus  late  fatet  : — genus         f  2  Rep.  Pref. 
fioc  omne  fcieniiae,    diligentiae,    memoriae  efl ; 

*<  tions 


§.  i.  of   the    L  A  w,  ii 

"  tions  In  law  arife,  and  the  learned  fliould  not  fo  often  and  fo 
«« much  perplex  their  heads  to  make  atonement  and  peace,  by 
"  conftruction  of  law,  between  infenfible  and  difagreeing  words, 
"fentences,  and  provifoes,  as  they  now  do."  And  if  this  incon- 
venience was  fo  heavily  felt  in  the  reign  of  queen  Elizabeth,  you 
may  judge  how  the  evil  is  increafed  in  later  times,  when  the 
ftatute  book  is  fwelled  to  ten  times  a  larger  bulk ;  unlefs  it  fliould 
be  found,  that  the  penners  of  our  modern  ftatutes  have  propor- 
tionably  better  informed  themfelves  in  the  knowlege  of  the  com- 
mon law. 

WHAT  is  faid  of  our  gentlemen  in  general,  and  the  propriety 
of  their  application  to  the  fludy  of  the  laws  of  their  country, 
will  hold  equally  ftrong  or  ftill  ftronger  with  regard  to  the  nobi- 
lity of  this  realm,  except  only  in  the  article  of  ferving  upon  ju- 
ries. But,  inftead  of  this,  they  have  feveral  peculiar  provinces 
of  far  greater  confequence  and  concern  -,  being  not  only  by  birth 
hereditary  counfellors  of  the  crown,  and  judges  upon  their  ho- 
nour of  the  lives  of  their  brother-peers,  but  alfo  arbiters  of  the 
property  of  all  their  fellow-fubjects,  and  that  in  the  laft  refort, 
In  this  their  judicial  capacity  they  are  bound  to  decide  the  niceft 
and  moft  critical  points  of  the  law ;  to  examine  and  correct  fuch 
errors  as  have  efcaped  the  moft  experienced  fages  of  the  profef- 
iion,  the  lord  keeper  and  the  judges  of  the  courts  at  Weftminfter. 
Their  fentence  is  final,  decifive,  irrevocable  :  no  appeal,  no  cor- 
rection, not  even  a  review  can  be  had :  and  to  their  determina- 
tion, whatever  it  be,  the  inferior  courts  of  juftice  muft  conform ; 
otherwife  the  rule  of  property  would  no  longer  be  uniform  and 
fteady. 

SHOULD  a  judge  in  the  moft  fubordinate  jurifdiction  be  de- 
ficient in  the  knowlege  of  the  law,  it  would  reflect  infinite  con- 
tempt upon  himfelf  and  difgrace  upon  thofe  who  employ  him. 
And  yet  the  confequence  of  his  ignorance  is  comparatively  very 
trifling  and  fmall :  his  judgment  may  be  examined,  and  his  er- 
rors rectified,  by  other  courts.  But  how  much  more  ferious  and 

B  2  affecting 


12  On      t&S     S-  T  U  D  Y  I  N  T  R  O  D, 

affefting  is  the  cafe  of  a  fuperior  judge,  if  without  any  (kill  in 
the  laws  he  will  boldly  venture  to  decide  a  queflion,  upon  which 
the  welfare  and  fubfiilence  of  whole  families  may  depend  !  where 
the  chance  of  his  judging  right,  or  wrong,  is  barely  equal ;  and 
where,  if  he  chances  to  judge  wrong,  he  does  an  injury  of  the 
moil  alarming  nature,  an  injury  without  pofiibility  of  redrefs ! 

YET,  vail  as  this  truil  is,  it  can  no  where  be  fo  properly  re- 
pofed  as  in  the  noble  hands  where  our  excellent  conftitution  has 
placed  it :  and  therefore  placed  it,  becaufe,  from  the  indepen- 
dence of  their  fortune  and  the  dignity  of  their  fhation,  they  are 
preiumed  to  employ  that  leifure  which  is  the  confequence  of 
both,  in  attaining  a  more  extenfive  knowlege  of  the  laws  than 
perfons  of  inferior  rank  :  and  becaufe  the  founders  of  our  polity 
relied  upon  that  delicacy  of  fentiment,  fo  peculiar  to  noble  birth; 
which,  as  on  the  one  hand  it  will  prevent  either  intereft  or  af- 
fection from  interfering  in  queilions  of  right,  fo  on  the  other  it 
will  bind  a  peer  in  honour,  an  obligation  which  the  law  eileems 
equal  to  another's  oath,  to  be  mailer  of  thofe  points  upon  which 
it  is  his  birthright  to  decide. 

THE  Roman  pandecls  will  furnifh  us  with  a  piece  of  hiilory 
not  unapplicable  to  our  prefent  purpofe.  Servius  Sulpicius,  a 
gentleman  of  the  patrician  order,  and  a  celebrated  orator,  had 
occafion  to  take  the  opinion  of  Quintus  Mutius  Scaevola,  the 
oracle  of  the  Roman  law ;  but  for  want  of  fome  knowlege  in 
that  fcience,  could  not  fo  much  as  underiland  even  the  technical 
terms,  which  his  friend  was  obliged  to  make  ufe  of.  Upon  which 
Mutius  Scaevola  could  not  forbear  to  upbraid  him  with  this  me^ 
morable  reproof6,  "  that  it  was  a  fhame  for  a  patrician,  a  noble- 
"  man,  and  an  orator  of  caufes,  to  be  ignorant  of  that  law  in 
"  which  he  was  fo  peculiarly  concerned."  This  reproach  made  ib 
deep  an  impreffion  on  Sulpicius,  that  he  immediately  applied 
himfelf  to  the  iludy  of  the  law ;  wherein  he  arrived  to  that  pro- 

*  Ff.  i.  2.  2.    §.  43.    Turps  ejft  fatricio,  et  nolili,  et  cc.ufas  eranti,  jus  in  quo  <verf.iretur 
ignorare, 

ficiency, 


§.  i.  of    the    L  AW.  13 

ficiency,  that  he  left  behind  him  about  a  hundred  and  fourfcors 
volumes  of  his  own  compiling  upon  the  fubjec"l;  and  became,  in 
the  opinion  of  Cicero  h,  a  much  more  complete  lawyer  than  even 
Mutius  Scaevola  himfelf. 

I  WOULD  not  be  thought  to  recommend  to  our  Englifh  no- 
bility and  gentry  to  become  as  great  lawyers  as  Sulpicius ;  though 
he,  together  with  this  character,  fuftained  likewife  that  of  aa 
excellent  orator,  a  firm  patriot,  and  a  wife  indefatigable  fenator; 
but  the  inference  which  arifes  from  the  ftory  is  this,  that  igno- 
rance of  the  laws  of  the  land  hath  ever  been  efteemed  dimonour- 
able,  in  thofe  who  are  entrufted  by  their  country  to  maintain,  tor 
adminifter,  and  to  amend  thenu 

BUT  furely  there  is  little  occafion  to  enforce  this  argument 
any  farther  to  perfons  of  rank  and  diftinclion,  if  we  of  this  place 
may  be  allowed  to  form  a  general  judgment  from  thofe  who  are 
under  our  infpeclion  :  happy,  that  while  we  lay  down  the  rule, 
we  can  alfo  produce  the  example.  You  will  therefore  permit  your 
profeffor  to  indulge  both  a  public  and  private  fatisfadtion,  by 
bearing  this  open  teftimony ;  that  in  the  infancy  of  thefe  ftudies 
among  us,  they  were  favoured  with  the  moft  diligent  attendance, 
and  purfued  with  the  moft  unwearied  application,  by  thofe  of  the 
nobleft  birth  and  moft  ample  patrimony  :  fome  of  whom  are  ftill 
the  ornaments  of  this  feat  of  learning ;  and  others  at  a  greater 
diftance  continue  doing  honour  to  it's  inftitutions,  by  comparing 
our  polity  and  laws  with  thofe  of  other  kingdoms  abroad,  or  ex- 
erting their  fenatorial  abilities  in  the  councils  of  the  nation  at 
home. 

NOR  will  fome  degree  of  legal  knowlege  be  found  in  the  leaft 
fuperfluous  to  perfons  of  inferior  rank ;  efpecially  thofe  of  the 
learned  profeffions.  The  clergy  in  particular,  befides  the  com- 
mon obligations  they  are  under  in  proportion  to  their  rank  and 
fortune,  ha-ve  alfo  abundant  reafon,  confidered  merely  as  clergy— 

h  Brut.  41^ 

men.,. 


14.  On    the    S  T  u  D  Y  IN  TROD. 

men,  to  be  acquainted  with  many  branches  of  the  law,  which 
are  almoft  peculiar  and  appropriated  to  themfelves  alone.  Such 
are  the  laws  relating  to  advowions,  institutions,  arid  inductions ; 
to  fimony,  and  fimoniacal  contracts;  to  uniformity,  refidence, 
and  pluralities ;  to  tithes  and  other  ecclefiaftical  dues ;  to  mar- 
riages (more  efpecially  of  late)  and  to  a  variety  of  other  fubjedls, 
which  are  coniigned  to  the  care  of  their  order  by  the  proviilons 
of  particular  ftatutes.  To  underftand  thefe  aright,  to  difcern  what 
is  warranted  or  enjoined,  and  what  is  forbidden  by  law,  demands 
a  fort  of  legal  apprehenfion ;  which  is  no  otherwife  to  be  acqui- 
red than  by  ufe  and  a  familiar  acquaintance  with  legal  writers. 

FOR  the  gentlemen  of  the  faculty  of  phyiic,  I  muft  frankly 
own  that  I  fee  no  fpecial  reafon,  why  they  in  particular  mould 
apply  themfelves  to  the  ftudy  of  the  law  ;  unlefs  in  common  with 
other  gentlemen,  and  to  complete  the  character  of  general  and 
extenlive  knowlege ;  a  character  which  their  profellion,  beyond 
others,  has  remarkably  deferved.  They  will  give  me  leave  how- 
ever to  fuggeft,  and  that  not  ludicroully,  that  it  might  frequent- 
ly be  of  ufe  to  families  upon  fudden  emergencies,  if  the  phyiician 
were  acquainted  with  the  doctrine  of  laft  wills  and  tertaments, 
at  leaft  fo  far  as  relates  to  the  formal  part  of  their  execution. 

BUT  thofe  gentlemen  who  intend  to  profefs  the  civil  and  ec- 
clefiaftical laws  in  the  fpiritual  and  maritime  courts  of  this  king- 
dom, are  of  all  men  (next  to  common  lawyers)  the  moft  indif- 
penfably  obliged  to  apply  themfelves  ferioufly  to  the  fludy  of  our 
municipal  laws.  For  the  civil  and  canon  laws,  confidered  with 
refpedl  to  any  intrinfic  obligation,  have  no  force  or  authority  in 
this  kingdom;  they  are  no  more  binding  in  England  than  our 
laws  are  binding  at  Rome.  But  as  far  as  thefe  foreign  laws,  on 
account  of  fome  peculiar  propriety,  have  in  fome  particular  cafes, 
and  in  fome  particular  courts,  been  introduced  and  allowed  by 
our  laws,  fo  far  they  oblige,  and  no  farther ;  their  authority  being 
wholly  founded  upon  that  permtfllon  and  adoption.  In  which  we 
are  not  fingular  in  our  notions :  for  even  in  Holland,  where  the 

imperial 


§.  i.  of    the    LA  w.  15 

imperial  law  is  much  cultivated  and  it's  decifions  pretty  generally 
followed,  we  are  informed  by  Van  Lecuwen  ',  that,  "  it  receives 
"  it's  force  from  cuftom  and  the  confent  of  the  people,  either  ta- 
"  citly  or  expreflly  given  :  for  otherwife,  he  adds,  we  fhould  no 
"  more  be  bound  by  this  law,  than  by  that  of  the  Almains,  the 
"  Franks,  the  Saxons,  the  Goths,  the  Vandals,  and  other  of  the 
"aptient  nations."    Wherefore,  in  all  points  in  which  the  diffe- 
rent fyftems  depart  from  each  other,   the  law  of  the  land  takes, 
place  of  the  law  of  Rome,  whether  antient  or  modern,  imperial 
or  pontificial.    And  in  thofe  of  our  Englifh.  courts  wherein  a  re- 
ception has  been  allowed  to  the  civil  and  canon  laws,  if  either 
they  exceed  the  bounds  of  that  reception,  by  extending  them- 
felves  to  other  makers,  than  are  permitted  to  them ;  or  if  fuch. 
courts  proceed  according  to  the  deciiions  of  thofe  laws,  in  cafes 
wherein  it  is  controlled  by  the  law  of  the  land,  the  common  law 
in  either  inftance  both   may,  and  frequently  does,  prohibit  and. 
•annul  their  proceedings  k  :   and  it  will  not  be  a  iufficient  excufe 
for  them  to  tell  the  king's  courts  at  Weftminfler,  that  their  prac- 
tice is  warranted  by  the  laws  of  Juilinian  or  Gregory,  or  is  con- 
formable to   the  decrees  of  the  Rota  or  imperial  chamber.     For 
which   reafon  it  becomes  highly  neceffary  for  every  civilian  and 
canonift  that  would  act  with  fafety  as  a  judge,  or  with  prudence 
and  reputation  as  an  advocate,  to  know  in  what  cafes  and  how 
far  the  Eiiglifh  laws  have  given  fanction  to  the  Roman  ;  in  what 
points  the  latter  are  rejecled ;  and  where  they  are  both  fo  inter- 
mixed and  blended  together,   as  to  form  certain  fupplemental 
parts  of  the  common  law  of  England,  diftinguimed  by  the  titles 
of  the  king's  maritime,  the  king's  military,  and  the  king's  eccle- 
fiaftical  law.     The  propriety  of  which  enquiry  the  univerfity  of 
Oxford  has  for  more  than  a  century  fo  thoroughly  feen,  that  in 
her  ftatutes l  me  appoints,  that  one  of  the  three  queftions  to  be 
annually  difcuifed  at  the  act  by  the  jurift-inceptors  (hall  relate  to 
the  common  law  ;  fubjoining  this  reafon,   "  quia  juris  chilis  ftu~ 
**  diofos  decet  hand  imperitos  eJJ'e  juris  municipalis,  et  differentia*  ex- 

'  DedUatio  corf  ons  Juris  ci-vilis.  Edit.l66^.      tarn.    5  Rep.  Caudrey's  cafe.     2  Inft.  599. 
k  Hale.  Hill.  C.  L.  c.  2.    Selden  in  Fie-         J  Tit.  FIL  Sea.  2.   $.  2. 

"teti 


1 6  On    the    S  T  u  D  Y  IN  TROD, 

"  teri pairiique  juris  nofas  habere."    And  the  ftatutes1"  of  the  uni- 
verfity  of  Cambridge  fpeak  exprefTly  to  the  fame  effect. 

FROM  the  general  ufe  and  neceffity  of  fbme  acquaintance  with 
the  common  law,  the  inference  were  extremely  eafy,  with  regard 
to  the  propriety  of  the  prefent  institution,  in  a  place  to  which 
gentlemen  of  all  ranks  and  degrees  refort,  as  the  fountain  of  all 
ufeful  knowlege.  But  how  it  has  come  to  pafs  that  a  defign  of 
this  fort  has  never  before  taken  place  in  the  univerfity,  and  the 
reafon  why  the  ftudy  of  our  laws  has  in  general  fallen  into  difufe, 
I  fhall  previoufly  proceed  to  enquire. 

SIR  John  Fortefcue,  in  his  panegyric  on  the  laws  of  England, 
(which  was  written  in  the  reign  of  Henry  the  fixth)  puts  "  a  very 
obvious  queftion  in  the  mouth  of  the  young  prince,  whom  he  is 
exhorting  to  apply  himfelf  to  that  branch  of  learning  -,  "  why  the 
"  laws  of  England,  being  fo  good,  lo  fruitful,  and  fo  commo- 
"dious,  are  not  taught  in  the  univerfities,  as  the  civil  and  canon 
"  laws  are  ?"  In  anfwer  to  which  he  gives  °  what  feeais,  with 
due  deference  be  it  fpoken,  a  very  jejune  and  unfatisfadtory  rea- 
fon ;  being  in  fhort,  that  "  as  the  proceedings  at  common  law 
"  were  in  his  time  carried  on  in  three  different  tongues,  the 
«'  Englifh,  the  Latin,  and  the  French,  that  fcience  mult  be  ne- 
*ccefTarily  taught  in  thofe  three  feveral  languages;  but  that  in 
"  the  univerfities  all  fciences  were  taught  in  the  Latin  tongue 
"  only  ;  and  therefore  he  concludes,  that  they  could  not  be  con- 
"  veniently  taught  or  fludied  in  our  univerfities."  But  without 
attempting  to  examine  ferioufly  the  validity  of  this  reafon,  (the 
very  fhadow  of  which  by  the  wifdom  of  your  late  conftt tutions 
is  entirely  taken  away)  we  perhaps  may  find  out  a  better,  or  at 
leaft  a  more  plaufible  account,  why  the  ftudy  of  the  municipal 
laws  has  been  banifhed  from  thefe  feats  of  fcience,  than  what  the 
learned  chancellor  thought  it  prudent  to  give  to  his  royal  pupil. 

m  Doflor  legiim  max   a  duftoratu  dabit  ope-     ieri patriique juris  nofcat.  Stat.  Eliz.  R.  c.  14. 
ram  legibu;  Angliae,  ut  nun  fit  impsritus  earum     Cowel.  Inftitu!.  in  proetnio. 
legum  qua!  habet  fua  patria,   et  differentia!  ex-          °  c.  47.  "°  c.  48. 

THAT 


§.  i.  of   the    L  A  w.  17 

THAT  antient  collection  of  unwritten  maxims  and  cuftoms, 
which  is  called  the  common  law,  however  compounded  or  from 
whatever  fountains  derived,  had  fubfifted  immemorially  in  this 
kingdom ;  and,  though  fomewhat  altered  and  impaired  by  the 
violence  of  the  times,  had  in  great  meafure  weathered  the  rude 
mock  of  the  Norman  conqueft.  This  had  endeared  it  to  the 
people  in  general,  as  well  becaufe  it's  decifions  were  univerfally 
known,  as  becaufe  it  was  found  to  be  excellently  adapted  to  the 
genius  of  the  Englifh  nation.  In  the  knowlege  of  this  law  con- 
fifted  great  part  of  the  learning  of  thofe  dark  ages ;  it  was  then 
taught,  fays  Mr  Selden p,  in  the  monasteries,  in  the  univerjities, 
and  in  the  families  of  the  principal  nobility.  The  clergy  in  par- 
ticular, as  they  then  engrofled  almoft  every  other  branch  of  learn- 
ing, fo  (like  their  predeceflbrs  the  Britifh  druidsq)  they  were 
peculiarly  remarkable  for  their  proficiency  in  the  ftudy  of  the 
law.  Nullus  clericus  nifi  caufidicus,  is  the  character  given  of  them 
foon  after  the  conqueft  by  William  of  Malmflbury r.  The  judges 
therefore  were  ufually  created  out  of  the  facred  order  s,  as  was 
likewife  the  cafe  among  the  Normans ' ;  and  all  the  inferior  offi- 
ces were  fupplied  by  the  lower  clergy,  which  has  occafioned  their 
fucceffors  to  be  denominated  clerks  to  this  day. 

BUT  the  common  law  of  England,  being  not  committed  to 
writing,  but  only  handed  down  by  tradition,  ufe,  and  experience, 
was  not  fo  heartily  relimed  by  the  foreign  clergy ;  who  came 
over  hither  in  fhoals  during  the  reign  of  the  conqueror  and  his 
two  fons,  and  were  utter  flrangers  to  our  conftitution  as  well  as 
our  language.  And  an  accident,  which  foon  after  happened,  had 
nearly  completed  it's  ruin.  A  copy  of  Juftinian's  pandecls,  being 
newly11  difcovered  at  Amain",  foon  brought  the  civil  law  into 

P  in  Fief  am.  j.  7.  cbanoincs  les  eglifes  catbedraulx,  et  les  autres 

*  Caefar  de  bclh  Gal.  6.  I  2.  psrfonnes  qiti  ont  dignitez.  in  faintle  eglij'e  ;    les 
'  de  gift.  reg.  1.  4.  abbex,  les  prieurs  caatientaulx,  et  les  gouver- 

*  Dugdale  Orig.  jurid.  c.  8.  neurt   des  eglifes,    We.      Grand    Ccmjiumier, 
1  Les  juges  font  fages  psrfonnes  et  autenti-     cb.  9. 

qurs, — ficame  les  archtiiefques,    evefqnts,    les          u  eirc.  A.  D.  1 1  30. 

C  vogue 


1  8  On    the    S  T  u  D  Y  I  N  T  R  o  i>» 

vogue  all  over  the  weft  of  Europe,  where  before  it  was  quite 
laid  afide  w  and  in  a  manner  forgotten  j  though  fome  traces  of  it's 
authority  remained  in  Italy  '  and  the  eaftern  provinces  of  the  em- 
pire y.  This  now  became  in  a  particular  manner  the  favourite  of 
the  popifh  clergy,  who  borrowed  the  method  and  many  of  the 
maxims  of  their  canon  law  from  this  original.  The  ftudy  of  it 
was  introduced  into  feveral  univerfities  abroad,  particularly  that 
of  Bologna  ;  where  exercifes  were  performed,  lectures  read,  and 
degrees  conferred  in  this  faculty,  as  in  other  branches  of  fcience  : 
and  many  nations  on  the  continent,  juft  then  beginning  to  reco- 
ver  from  the  convulfions  confequent  upon  the  overthrow  of  the 
Roman  empire,  and  fettling  by  degrees  into  peaceable  forms  of 
government,  adopted  the  civil  law,  (being  the  beft  written  fyf- 
tem  then  extant)  as  the  bafis  of  their  feveral  conflitutions  ;  blend- 
ing and  interweaving  it  among  their  own  feodal  cuftoms,  in  fome 
places  with  a  more  extenfive,  in  others  a  more  confined  authority2. 

NOR  was  it  long  before  the  prevailing  mode  of  the  times 
reached  England.  For  Theobald,  a  Norman  abbot,  being  elect- 
ed to  the  fee  of  Canterbury3,  and  extremely  addicted  to  this  new 
ftudy,  brought  over  with  him  in  his  retinue  many  learned  profi- 
cients therein  ;  and  among  the  reft  Roger  firnamed  Vacarius, 
whom  he  placed  in  the  univerfity  of  Oxford  b,  to  teach  it  to  the 
people  of  this  country.  But  it  did  not  meet  with  the  fame  eafy 
reception  in  England,  where  a  mild  and  rational  fyftem  of  laws 
had  been  long  eftablifhed,  as  it  did  upon  the  continent  ;  and, 
though  the  monkifli  clergy  (devoted  to  the  will  of  a  foreign  pri- 
mate) received  it  with  eagernefs  and  zeal,  yet  the  laity  who  were 
more  interefted  to  preferve  the  old  conftitution,  and  had  already 
feverely  felt  the  effect  of  many  Norman  innovations,  continued 
wedded  to  the  ufe  of  the  common  law.  King  Stephen  imme- 


w  LL.  Wifigotb.  2.  1.9.  EfiJloL  Innocent.  IV.  in  M.Paris,  ad  A. 

*   Capitular.  Hludov.  Pit.  4.  IO2.  a  A.  D.  1138. 

y  Selden  in  FIctam.  5  .  5  .  b  Gervaf.  Dorobern.  4fl.  Poitif.  Cantuar. 

11  Domat's  treatife  of  law.    c.  13.  §.9.     col.  1665. 

diately 


§.  i.  of   the    L  A  w.  19 

diately  publiihed  a  proclamation  c,  forbidding  the  ftudy  of  the 
laws,  then  newly  imported  from  Italy ;  which  was  treated  by  the 
monks d  as  a  piece  of  impiety,  and,  though  it  might  prevent  the 
introduction  of  the  civil  law  procefs  into  our  courts  of  juftice, 
yet  did  not  hinder  the  clergy  from  reading  and  teaching  it  in 
their  own  fchools  and  monasteries, 

FROM   this  time  the  nation  feems  to  have  been  divided  into 
two  parties ;    the  bifhops   and  clergy,  many  of  them  foreigners, 
who  applied  themfelves  wholly  to  the  ftudy  of  the  civil  and  ca- 
non laws,  which  now  came  to  be  infeparably  interwoven  with 
each  other ;   and  the  nobility  and  laity,  who  adhered  with  equal 
pertinacity  to  the  old  common  law ;    both  of  them  reciprocally 
jealous  of  what  they  were  unacquainted  with,   and  neither  of 
them  perhaps  allowing  the  oppofite  fyftem  that  real  merit  which 
is  abundantly  to  be  found  in  each.     This  appears  on  the  one 
hand  from  the  fpleen  with  which  the  monaftic  writers e  fpeak  of 
our  municipal  laws  upon  all  occafions ;    and,  on  the  other,  from 
the  firm  temper  which  the  nobility  mewed  at  the  famous  parlia- 
ment of  Merton ;  when  the  prelates  endeavoured  to  procure  an 
act,  to  declare  all  baftards  legitimate  in  cafe  the  parents  inter- 
married at  any  time  afterwards  ;  alleging  this  only  reafon,  becaufe 
holy  church  (that  is,  the  canon  law)  declared  fuch  children  legi- 
timate :  but  "  all  the  earls  and  barons  (fays  the  parliament  roll f ) 
"  with  one  voice  anfwered,  that  they  would  not  change  the  laws 
"  of  England,    which  had  hitherto  been  ufed  and  approved." 
And  we  find  the  fame  jealoufy  prevailing  above  a  century  after- 
wards g,    when  the  nobility  declared  with  a  kind  of  prophetic 
fpirit,  "  that  the  realm  of  England  hath  never  been  unto  this 
"hour,  neither  by  the  confent  of  our  lord  the  king  and  the  lords 
"  of  parliament  mail  it  ever  be,  ruled  or  governed  by  the  civil 

c  Rog.  Bacon,   dtat.  per  Selden.   :/i  Fie-  !  Stat,  Merlon.  20  Hen.  III.  e.g.  Et  cmnes 

teim.'j.d.  in  Fortefc.  c.  33.   &  8  Rep.  Pref.  fcmites  et  larones  una  voce  rejportaenait,  quad 

A    Joan.  Sarifburiens.    Polycrat.  8.  22.  nolxat  leges  Angliae  mutare,  quae  bucufyae  ujl- 

'  Idem,  ibi<i.$.\6.   Polydor.  Vergil.  Hijt.  tatue  j'uiit  ft  afpnbatae. 

I.  9.  s   uRic.  II. 

C  2  "lawV! 


20  On    the    S  T  u  D  Y  I  N  T  R  o  D. 

"  lawh."   And  of  this  temper  between  the  clergy  and  laity  many 
more  inftances  might  be  given. 

WHILE  things  were  in  this  fituation,  the  clergy,  finding  it 
impoffible  to  root  out  the  municipal  law,  began  to  withdraw 
themfelves  by  degrees  from  the  temporal  courts ;  and  to  that  end1, 
very  early  in  the  reign  of  king  Henry  the  third,  epifcopal  confli- 
tutions  were  published ',  forbidding  all  ecclefiaftics  to  appear  as 
advocates  In  foro  Jaeculari ;  nor  did  they  long  continue  to  aft  as 
judges  there,  not  caring  to  take  the  oath  of  office  which  was 
then  found  necefTary  to  be  adminiftred,  that  they  mould  in  all 
things  determine  according  to  the  law  and  cuftom  of  this  realm  k; 
though  they  flill  kept  poffeffion  of  the  high  office  of  chancellor, 
an  office  then  of  little  juridical  power;  and  afterwards,  as  it's  . 
bufmefs  increafed  by  degrees,  they  modelled  the  procefs  of  the 
court  at  their  own  difcretion. 

BUT  wherever  they  retired,  and  wherever  their  authority  ex- 
tended, they  carried  with  them  the  fame  zeal  to  introduce  the 
rules  of  the  civil,  in  exclufion  of  the  municipal  law.  This  ap- 
pears in  a  particular  manner  from  the  fpiritual  courts  of  all  de- 
nominations, from  the  chancellor's  courts  in  both  our  universities, 
and  from  the  high  court  of  chancery  before -mentioned ;  in  all  of 
which  the  proceedings  are  to  this  day  in  a  courfe  much  conformed 
to  the  civil  law :  for  which  no  tolerable  reafon  can  be  affigned, 
unlefs  that  thefe  courts  were  all  under  the  immediate  direction  of 
the  popifh  ecclefiaftics,  among  whom  it  was  a  point  of  religion 
to  exclude  the  municipal  law;  pope  Innocent  the  fourth  having 
forbidden !  the  very  reading  of  it  by  the  clergy,  becaufe  it's  de- 
cifions  were  not  founded  on  the  imperial  conftitutions,  but  merely 
on  the  cuftoms  of  the  laity.  And  if  it  be  confidered,  that  our 
univerfities  began  about  that  period  to  receive  their  prefent  form 
of  fcholaftic  difcipline ;  that  they  were  then,  and  continued  to 

k  Selden.  Jan.  Anglor.  I,  2.   §.43.  in  For-     <vol.  l.  /.  574   599. 
tefc.  c.  33.  k   Selden.  in  t  e;am.  9.  3. 

'  Spelman.  ConciL  A.D.  1217.  Wilkins,         '  M.  Paris  ad  A.D.  1254. 

be 


§.  i .  of   the    L  A  w.  2-1 

be  till  the  time  of  the  reformation,  entirely  under  the  influence 
of  the  popifti  clergy  ;  (fir  John  Mafon  the  firft  proteftant,  being 
alfo  the  firft  lay,  chancellor  of  Oxford)  this  will  lead  us  to  per- 
ceive the  reafon,  why  the  ftudy  of  the  Roman  laws  was  in  thofe 
days  of  bigotry  m  purfued  with  fuch  alacrity  in  thefe  feats  of  learn- 
ing ;  and  why  the  common  law  was  entirely  defpifed,  and  ef- 
teemed  little  better  than  heretical. 

AND,  fmce  the  reformation,  many  caufes  have  confpired  to 
prevent  it's  becoming  a  part  of  academical  education.  As,  firft, 
long  ufage  and  eftablifhed  cuftom ;  which,  as  in  every  thing  elfe, 
fo  efpecially  in  the  forms  of  fcholaftic  exercife,  have  juftly  great 
weight  and  authority.  Secondly,  the  real  intrinfic  merit  of  the 
civil  law,  confidered  upon  the  footing  of  reafon  and  not  of  obli- 
gation, which  was  well  known  to  the  inftru&ors  of  our  youth; 
and  their  total  ignorance  of  the  merit  of  the  common  law,  though 
it's  equal  at  leaft,  and  perhaps  an  improvement  on  the  other. 
But  the  principal  reafon  of  all,  that  has  hindered  the  introduc- 
tion of  this  branch  of  learning,  is,  that  the  ftudy  of  the  common 
law,  being  banifhed  from  hence  in  the  times  of  popery,  has 
fallen  into  a  quite  different  chanel,  and  has  hitherto  been  wholly 
cultivated  in  another  place.  But  as  this  long  ufage  and  eftabliflied 
cuftom,  of  ignorance  in  the  laws  of  the  land,  begin  now  to  be 
thought  unreafonable ;  and  as  by  this  means  the  merit  of  thole 

m  There  cannot  be  a  ftronger  inflance  of  "fapientem  ;  fecundo,  quod  contra  adverfarium 

the  abfurd  and  fuperftitious  veneration  that  "  ajlutum  &  fagacem;    tertio,  quod  in  cattfa 

was  paid  to  thefe  laws,   than  that  the  moft  "  dej'perata  :  fed  beatij/tma  •virgo,  contra  ju- 

learned  writers  of  the  times  thought  they  "  dicem  fapkntijjlmum,  Dominion ;  contra  ad- 

could  not  form  a  perfeft  character,  even  of  ««  <verfarium  callidij/imum,  dyabolum  ;  in  caufa 

the   blefled  virgin,   without  making  her  a  "  nojlra  defperata ;  fententiam.  eptatam   obti- 

civilian  and   a  canonifi.     Which  Albertus  "  unit."    To  which  an  eminent  francifcan, 

Magnus,  the  renowned  dominican  doctor  of  two  centuries    afterwards,    Bernardinus  de 

the  thirteenth  century,   thus  proves  in  his  Bufti  (Mart ale,  part.  4.  ferm.g.J  very  gravely 

Summa  de  laudibus  cbriftiferae  virgiiiis  (di<vi-  fubjoins  this  note.    "  Nee  wdetur  incingruum 

num  magis  quam  humanum  opus)  qu.  23.    §.5.  "  mulicres  halitre peritiam  juris.     Legitur  enim 

"Item  quod  jura  ci'vilia,  &  leges,  &  decreta  "  de  uxore  Joannis  Andreae   gloj/atoris,    quod 

"  fci'vit  in  Jummo,  probatur  hoc  motio  :  fapien-  "  tantam  fprittam  in  utroque  jure  babttit,  ut 

"  tia  ad'vocaii  manifejlatur  in  trlbus  ;   unum,  "  publics  in  Jcboln  legere  auja  J,t> 
"  quod  oltineat  otr.nia  contra  judicem  jujlum  £3" 

laws 


22  On      the      S  T  U  D  Y  I N  T  R  O  D. 

laws  will  probably  be  more  generally  known -,  we  may  hope  that 
the  method  of  ftudying  them  will  loon  revert  to  it's  antient  courfe, 
and  the  foundations  at  lead  of  that  fcience  will  be  laid  in  the 
two  univerfities  ;  without  being  exclufively  confined  to  the  chanel 
which  it  fell  into  at  the  times  I  have  been  juft  defcribino-. 

FOR,  being  then  entirely  abandoned  by  the  clergy,  a  few 
ftragglers  excepted,  the  ftudy  and  practice  of  it  devolved  of 
courfe  into  the  hands  of  laymen ;  who  entertained  upon  their 
parts  a  moft  hearty  averfion  to  the  civil  l#w ",  and  made  no 
fcruple  to  profefs  their  contempt,  nay  even  their  ignorance  °  of 
it,  in  the  moft  public  manner.  But  ftill,  as  the  ballance  of  learn- 
ing was  greatly  on  the  fade  of  the  clergy,  and  as  the  common 
law  was  no  longer  taught,  as  formerly,  in  any  part  of  the  kino-- 
dom,  it  muft  have  been  fubjeded  to  many  inconveniences,  and 
perhaps  would  have  been  gradually  loft  and  overrun  by  the  civil, 
(a  fulpicion  well  juftified  from  the  frequent  tranfcripts  of  Jufti- 
nian  to  be  met  with  in  Brac~lon  and  Fleta)  had  it  not  been  for  a 
peculiar  incident,  which  happened  at  a  very  critical  time,  and 
contributed  greatly  to  it's  fupport. 

THE  incident  I  mean  was  the  fixing  the  court  of  common 
pleas,  the  grand  tribunal  for  difputes  of  property,  to  be  held  in 
one  certain  fpot;  that  the  feat  of  ordinary  juftice  might  be  per- 
manent and  notorious  to  all  the  nation.  Formerly  that,  in  con- 
junction with  all  the  other  fuperior  courts,  was  held  before  the 

n  Fortefc.  de  laud.  LL.  r.  25.  ones   was    prohibited.      Bat  Skipwith    the 

0  This  remarkably  appeared  in  the  cafe  of  king's  ferjeant,  and  afterwards  chief  baron 

theabbot  of  Torun.M.  zzEtfav. III.  2^.  who  of  the  exchequer,  declares  them   to  be  flat 

had  caufsd  a  certain  prior  to  be  fummoned  nonfenfc;   "  in  ceux parolx,  contra  inhibiti- 

to  anfwer  at  Avignon  for  creeling  an  orato-  "  onem  novi  operis,  ny  ad  pas  entendment :" 

ry  contra  inhibitionem  ao-ui  operis;  by  which  and   juftice  Schardelow  mends  the  matter 

words  Mr  Selden,  (/a  FA-/.  8.  5.)  very  jultly  but  little  by  informing  him,  that  they  iig- 

underftands   to  be  meant   the  title  de  uwi  nify  a  restitution  in  tbeir  law,  for  which 

operis  nuiitiatwne  both  in  the  civil  and  canon  reafon  he  very  fagely  refolves  to  pay  no  fort 

laws,  (Ff.  39.  I.   C.  8.  1 1.  and  Decretal,  not  of  regard  to  them.    "  Ceo  n'eji  yue  un  rejii- 

Extrav.  5.  32.)  whereby  the  ereftion  of  any  "  tut ion  en  lour  ley,  fur  jue  a  ceo  tfavomus 

new  buildings  in  prejudice  of  more  antient  "  regard,  £?V." 

king's 


§.  i.  of    the    L  A  w.  23, 

king's  capital  jufticiary  of  England,  in  the  aula  regis,  or  fuch  of 
his  palaces  wherein  his  royal  perfon  refided ;  and  removed  with 
his  houfliold  from  one  end  of  the  kingdom  to  the  other.     This 
was  found  to  ocean" on  great  inconvenience  to  the  fuitors;  to  re- 
medy which  it  was  made  an  article  of  the  great  charter  of  liber- 
ties, both  that  of  king  John  and   king  Henry  the  third p,  that 
"  common  pleas  mould  no  longer  follow  the  king's  court,  but  be 
"  held  in  fome  certain  place  :"  in  confequence  of  which  they  have 
ever  fince  been  held  (a  few  necefTary  removals  in  times  of  the 
plague   excepted)    in    the   palace  of    Weftminfler  only.      This 
brought  together  the  profeflbrs  of  the  municipal  law,  who  be- 
fore were  difperfed  about  the  kingdom,  and  formed  them  into  an 
aggregate  body ;    whereby  a  fockty  was  eftablimed  of  perfons, 
•who   (as  Spelman  q  obferves)  addidting  themfelves  wholly  to  the 
fludy  of  the  laws  of  the  land,  and  no  longer  confidering  it  as  a 
mere    fubordinate   fcience  for  the  amufement  of   leifure  hours,, 
foon  railed  thofe  laws   to  that  pitch  of  perfection,  which  they 
fuddenly  attained  under  the  aufpices  of  our  Englim  Juftinian,, 
king  Edward  the  firft. 

IN  confequence  of  this  lucky  aflembl age,  they  naturally  fell 
into  a  kind  of  collegiate  order,  and,  being  excluded  from  Oxford 
and  Cambridge,  found  it  neceffary  to  eftablifh  a  new  univerfity 
of  their  own.  This  they  did  by  purchafing  at  various  times  cer- 
tain houfes  (now  called  the  inns  of  court  and  of  chancery)  be- 
tween the  city  of  Weflminfter,  the  place  of  holding  the  king's 
courts,  and  the  city  of  London  ;  for  advantage  of  ready  accefs 
to  the  one,  and  plenty  of  proviiions  in  the  other  r.  Here  exer- 
cifes  were  performed,  lectures  read,  and  degrees  were  at  length 
conferred  in  the  common  law,  as  at  other  univeriities  in  the  ca- 
non and  civil.  The  degrees  were  thofe  of  barrifters  (firfl  ftiled 
apprentices  s  from  apprendre,  to  learn)  who  anfwered  to  our  ba- 

f  c.  ii.  been  firft  appointed  by  an  ordinance  of  king 

1  Gloffar.  334.  Edward  the  firft  in  parliament,  in  the  zoth 

1  Fortefc.  c.  48.  year  of  his  reign.    (Spelm.  Glo/.  37.    Dug- 

*  Apprentices  or  barrifters  fecm  to  have  dale.    Orig.  jurid.  55.) 

chelors ;.. 


24  On    the    STUDY  INTRO  D, 

chelors ;  as  the  ftate  and  degree  of  a  ferjeant ",  fervientis  ad  legem, 
did  to  that  of  dodlor. 

THE  crown  feems  to  have  foon  taken  under  it's  prote&ion  this 
infant  feminary  of  common  law ;  and,  the  more  effe&ually  to 
fofter  and  cherifh  it,  king  Henry  the  third  in  the  nineteenth 
year  of  his  reign  iffued  out  an  order  directed  to  the  mayor  and 
fheriffs  of  London,  commanding  that  no  regent  of  any  law  fchools 
'within  that  city  mould  for  the  future  teach  law  therein  u.  The 
word,  law,  or  leges,  being  a  general  term,  may  create  fome  doubt 
at  this  diftance  of  time  whether  the  teaching  of  the  civil  law, 
or  the  common,  or  both,  is  hereby  retrained.  But  in  either 
cafe  it  tends  to  the  fame  end.  If  the  civil  law  only  is  prohibited, 
(which  is  Mr  Selden's  w  opinion)  it  is  then  a  retaliation  upon  the 
clergy,  who  had  excluded  the  common  law  from  their  feats  of 
learning.  If  the  municipal  law  be  alfo  included  in  the  restriction, 
(as  fir  Edward  Coke  x  under/lands  it,  and  which  the  words  feem 
to  import)  then  the  intention  is  evidently  this ;  by  preventing 
private  teachers  within  the  walls  of  the  city,  to  collect  all  the 
common  lawyers  into  the  one  public  univerfity,  which  was  newly 
inflituted  in  the  fuburbs. 

'  The  firft  mention  which  I  have  met  with  tire  fecret ;  and  to  that  end  wlult  ligamenta 
in  our  lawbooks  of  ferjeantspr  counters,  is  coifae  fuae  folvere,  ut  palam  monftrarct  fe  ton- 
in  the  ftatute  of  Weftm.  1 .  3  Edw.  I.  c.  29.  Jin-am  babere  elcricalem  ;  fed  non  eft  permijjus. 
and  in  Horn's  Mirror,  c.\.  §.IO.  c.  2.  §.5.  — —  Satelles  wro  earn  arripiens,  nun  per  coifae 
c.  3.  §.l.  in  the  fame  reign.  But  M.  Paris  ligamina  fed  per  guttur  eum  apprehendens,  traxit 
in  his  life  of  John  II,  abbot  of  St.  Alban's,  ad  carcerem.  And  hence  fir  H.  Spelman  con- 
whichhe  wrotein  12;;,  39 Hen.  III.  fpeaks  jeftures,  (Gloffar.  335.)  that  coifs  were  in- 
of  advocates  at  the  common  law,  or  coun-  troduced  to  hide  the  tonfure  of  fuch  rene- 
tors  (quos  band  narratores  vulgariter  apfel-  gade  clerks,  as  were  flill  tempted  to  remain 
lamiis)  as  of  an  order  of  men  well  known,  in  the  fecular  courts  in  the  quality  of  advo- 
And  we  have  an  example  of  the  antiquity  catei  or  judges,  notwithftanding  their  pro- 
of the  coif  in  the  fame  author's  hiftory  of  hibition  by  canon. 

England,  A.  D.  1259.   in  the  cafe  of  one  u  Ne  atiquis  fcbolas  rtgens  de  legibui en  ea- 

.William  de  Bufly;    who,    being   called   to  dan  civitate  da  eaetero  ibidem  leges  doceat. 

account    for   his   great    knavery  and   mal-  w  in  Flet.  8.  z. 

pra&kes,  claimed  the  benefit  of  his  orders  *  2  Inft.  proem, 
or  clergy,  which  till  then  remained  an  en- 

IN 


§.  i.  of   the   LAW.  25 

IN  this  juridical  univerfity  (for  fuch  it  is  infifted  to  have  been 
by  Fortefcuey  and  fir  Edward  Cokez)  there  are  two  forts  of  col- 
legiate houfes ,  one  called  inns  of  chancery,  in  which  the  younger 
ftudents  of  the  law  were  ufually  placed,  "  learning  and  ftudying, 
"  fays  Fortefcue  %  the  originals  and  as  it  were  the  elements  of 
"  the  law ;  who,  profiting  therein,  as  they  grew  to  ripenefs  fo 
"  were  they  admitted  into  the  greater  inns  of  the  fame  ftudy, 
"  called  the  inns  of  court."  And  in  thefe  inns  of  both  kinds,  he 
goes  on  to  tell  us,  the  knights  and  barons,  with  other  grandees 
and  noblemen  of  the  realm,  did  ufe  to  place  their  children, 
though  they  did  not  defire  to  have  them  thoroughly  learned  in 
the  law,  or  to  get  their  living  by  it's  practice  :  and  that  in  his 
time  there  were  about  two  thoufand  ftudents  at  thefe  feveral  inns, 
all  of  whom  he  informs  us  were^/w  nobilium,  or  gentlemen  born. 

HENCE  it  is  evident,  that  ( though  under  the  influence  of 
the  monks  our  univerfities  neglected  this  ftudy,  yet)  in  the  time 
of  Henry  the  fixth  it  was  thought  highly  neceflary  and  was  the 
univerfal  practice,  for  the  young  nobility  and  gentry  to  be  in- 
ftructed  in  the  originals  and  elements  of  the  laws.  But  by  degrees 
this  cuftom  has  fallen  into  difufe ;  fo  that  in  the  reign  of  queen 
Elizabeth  fir  Edward  Cokeb  does  not  reckon  above  a  thoufand 
fludents,  and  the  number  at  prefent  is  very  confiderably  lefs. 
Which  feems  principally  owing  to  thefe  reafons  :  firft,  becaufe 
the  inns  of  chancery  being  now  almoft  totally  filled  by  the  infe- 
rior branch  of  the  profeffion,  they  are  neither  commodious  nor 
proper  for  the  refort  of  gentlemen  of  any  rank  or  figure  j  fo  that 
there  are  very  rarely  any  young  ftudents  entered  at  the  inns 
of  chancery  :  fecondly,  becaufe  in  the  inns  of  court  all  forts  of 
regimen  and  academical  fuperintendance,  either  with  regard  to 
morals  or  ftudies,  are  found  impracticable  and  therefore  entirely 
neglected  :  laftly,  becaufe  perfons  of  birth  and  fortune,  after 
having  finifhed  their  ufual  courfes  at  the  univerfities,  have  feldom 

7    C.  49.  »   Hid. 

1  3  Rep.  pref.  b  ibid. 

D  leifure 


26  On    the    S  T  u  D  y  IN  TROD, 

leifure  or  refolution  fufficient  to  enter  upon  a  new  fcheme  of  ftudy 
at  a  new  place  of  inftruction.  Wherefore  few  gentlemen  now 
refort  to  the  inns  of  court,  but  fuch  for  whom  the  knowlege  of 
practice  is  abfolutely  neceffary ;  fuch,  I  mean,  as  are  intended 
for  the  profeffion  :  the  reft  of  our  gentry,  (not  to  fay  our  nobi- 
lity alfo)  having  ufually  retired  to  their  eftates,  or  vifited  foreign 
kingdoms,  or  entered  upon  public  life,  without  any  inftruction 
in  the  laws  of  the  land  ;  and  indeed  with  hardly  any  opportunity 
of  gaining  inftruction,  unlefs  it  can  be  afforded  them  in  thefe 
feats  of  learning. 

AND  that  thefe  are  the  proper  places,  for  affording  afiiftances 
of  this  kind  to  gentlemen  of  all  ftations  and  degrees,  cannot  (I 
think)  with  any  colour  of  reafon  be  denied.  For  not  one  of  the 
objections,  which  are  made  to  the  inns  of  court  and  chancery, 
and  which  I  have  juft  enumerated,  will  hold  with  regard  to  the 
univerfities.  Gentlemen  may  here  aflbciate  with  gentlemen  of 
their  own  rank  and  degree.  Nor  are  their  conduct  and  ftudies 
left  entirely  to  their  own  difcretion  ;  but  regulated  by  a  difci- 
pline  fo  wife  and  exact,  yet  fo  liberal,  fo  fenfible  and  manly, 
that  their  conformity  to  it's  rules  (which  does  at  prefent  fo  much 
honour  to  our  youth)  is  not  more  the  effect  of  conftraint,  than 
of  their  own  inclinations  and  choice.  Neither  need  they  appre- 
hend too  long  an  avocation  hereby  from  their  private  concerns 
and  amufements,  or  (what  is  a  more  noble  object)  the  fervdce  of 
their  friends  and  their  country.  This  ftudy  will  go  hand  in  hand 
with  their  other  purfuits  :  it  will  obftrudt  none  of  them ;  it  will 
ornament  and  afiift  them  all. 

BUT  if,  upon  the  whole,  there  are  any  ftill  wedded  to  mo- 
naftic  prejudice,  that  can  entertain  a  doubt  how  far  this  ftudy  is 
properly  and  regularly  academical,  fuch  perfons  I  am  afraid  either 
have  not  confidered  the  constitution  and  defign  of  an  univerfity, 
or  elfe  think  very  meanly  of  it.  It  muft  be  a  deplorable  narrow- 
nefs  of  mind,  that  would  confine  thefe  feats  of  inftruction  to  the 
limited  views  of  one  or  two  learned  profeffions.  To  the  praife 

of 


§.  I.  of    the    L  AW.  27 

of  this  age  be  it  fpoken,  a  more  open  and  generous  way  of  think- 
ing begins  now  univerfally  to  prevail.    The  attainment  of  liberal 
and  genteel  accomplifhments,  though  not  of  the  intellectual  fort, 
has  been  thought  by  our  wifeft  and  moft  affectionate  patrons  % 
and  very  lately  by  the  whole  univerlity d,  no  fmall  improvement 
of  our  antient  plan  of  education ;  and  therefore  I  may  fafely  af- 
firm that  nothing  (how  umifual  foever)  is,  under  due  regulations, 
improper  to  be  taught  in  this  place,  which  fs  proper  for  a  gentle- 
man to  learn.    But  that  a  fcience,  which  diftinguifhes  the  crite- 
rions  of  right  and  wrong ;    which  teaches  to  eftablifh  the  one, 
and  prevent,  punifli,  or  redrefs  the  other ;  which  employs  in  it's 
theory  the  nobleft  faculties  of  the  foul,  and  exerts  in  it's  practice 
the  cardinal  virtues  of  the  heart ;  a  fcience,  which  is  univerfal  in 
it's  ufe  and  extent,  accommodated  to  each  individual,  yet  com- 
prehending the  whole  community  j   that  a  fcience  like  this  fliould 
have  ever  been  deemed  unneceffary  to  be  ftudied  in  an  univerfi  ty, 
is  matter  of  aftonimment  and  concern.  Surely,  if  it  were  not  be- 
fore an  object  of  academical  knowlege,  it  was  high  time  to  make 
it  one;    and  to  thofe  who  can  doubt  the  propriety  of  it's  recep- 
tion among  us  (if  any  fuch  there  be)  we  may  return  an  anfwer 
in  their  own  way ;  that  ethics  are  confefTedly  a  branch  of  acade- 
mical  learning,    and  Ariftotle  hinifelf  has  faid,  fpeaking  of  the 
laws  of  his  own  country,  that  jurifprudence  or  the  knowlege  of 
thofe  laws  is  the  principal  and  moft  perfect  branch  of  ethics e. 

FROM  a  thorough  conviction  of  this  truth,  our  munificent 
benefactor  Mr  VINER,  having  employed  above  half  a  century  in. 
amafllng  materials  for  new-modelling  and  rendering  more  com- 
modious the  rude  ftudy  of  the  laws  of  the  land,  configned  both 

c  Lord  chancellor  Clarendon,  in  his  dia-          d  By  accepting  in   full  convocation  the 

logue  of  education,  among  his  trafts,  p.  3  25.  remainder  of  lord  Clarendon's  hiftory  from 

appears  to  have  been  very  folicitous,  that  his  noble  defendants,  on  condition  to  ap- 

it  might  be  made  "a  part  of  the  ornament  ply  the  profits  arifmg  from  it's  publication 

"of  our  learned   academies   to  teach  the  to  the  eftablimment  of  a  manage  in  the  uni- 

"  qualities  of  riding,  dancing,  and  fencing,  verfity. 

"  at  thofe  hours  when  more  ferious  exer-         e  TeA««i  p«.\iw  »HT»,  In  -m,  nXcutt  xp.-nt; 

"  cifes  ftould  be  intermitted."  xf>ims  £5).    Ethic,  ad  Nictmiach.  I.  5.  c.  3. 

D  2  the 


28 


On    the    STUDY 


INTROD* 


the  plan  and  execution  of  thefe  his  public-fpirited  defigns  to  the 
wifdom  of  his  parent  univerlity.  Refolving  to  dedicate  his  learn- 
ed labours  "  to  the  benefit  of  pofterity  and  the  perpetual  fervice 
"  of  his  country  V  he  was  feniible  he  could  not  perform  his  re- 
folutions  in  a  better  and  more  effectual  manner,  than  by  extend- 
ing to  the  youth  of  this  place. thofe  afliftances,  of  which  he  fo, 
well  remembered  and  fo  heartily  regretted  the  want.  And  the 
fenfe,  which  the  univerfity  has  entertained  of  this  ample  and  moft 
ufeful  benefaction,  muft  appear  beyond  a  doubt  from  their  gra- 
titude in  receiving  it  with  all  poffible  marks  of  efteem8;  from 
their  alacrity  and  unexampled  difpatch  in  carrying  it  into  execu- 
tion11; and,  above  all,  from  the  laws  and  conftitutions  by  which 
they  have  effectually  guarded  it  from  the  neglect  and  abufe  to 
which  fuch  inftitutions  are  liable1.  We  have  feen  an  univerfal 
emulation,  who  beft  fhould  underftand,  or  moil  faithfully  pur- 


f  See  the  preface  to  the  eighteenth  vo- 
lume of  his  abridgment. 

8  Mr  Viner  is  enrolled  among  the  public 
benefaftors  of  the  univerfity  by  decree  of 
convocation. 

h  Mr  Viner  died  June  5.,  1756.  His  ef- 
fefts  were  colleded  and  fettled,  near  a  vo- 
lume of  his  work  printed,  almoft  the  whole 
difpofed  of,  and  the  accounts  made  up,  in 
a  year  and  a  half  from  his  deceafe,  by  the 
very  diligent  and  worthy  adminiilrators  with 
the  will  annexed,  (Dr  Weft  and  Dr  Good 
of  Magdalene,  Dr  Whalley  of  Oriel,  Mr 
Buckler  of  All  Souls,  and  Mr  Belts  of  Uni- 
verfity college )  to  whom  that  care  was 
configned  by  the  univerfity.  Another  half 
year  was  employed  in  considering  and  fet- 
tling a  plan  of  the  propofed  inftitution,  and 
in  framing  the  ftatutes  thereupon,  which 
were  finally  confirmed  by  convocation  on 
the  3d  of  July,  1758.  The  profeflbr  was 
elefted  on  the  zo'h  of  Oftober  following, 
and  two  fcholars  on  the  fucceeding  day. 
And,  lallly,  it  was  agreed  at  the  annual 
audit  in  1761,  to  eftablifh  a  fellowfhip  ; 
and  a  fellow  was  accordingly  elected  in 


January  following.  —  T'ie  refidue  of  this 
fund,  arifmg  from  the  fale  of  Mr  Viner's 
abridgment,  will  probably  be  fufficient  here- 
after to  found  another  fellowiliip  and  fcho- 
larfhip,  or  three  more  fcholarmips,  as  mall 
be  thought  moft  expedient. 

*  The  ftatutes   are  in  fubftance  as  fol- 
lows : 

1.  THAT  the  accounts  of  this  benefac- 
tion be  feparately  kept,  and  annually  au- 
dited by  the  delegates  of  accounts  and  pro- 
feffor,  and  afterwards  reported  to  convoca- 
tion. 

2.  TH  AT  a  profe/Torfhip  of  the  laws  of 
England  be  eftablimed,  with  a  (alary  of  two 
hundred  pounds  per  annum  ;    the  profefibr 
to  be  elected  by  convocation,  and  to  be  at 
the  time  of  his  eleftion  at  leaft  a  mafter  of 
arts  or  bachelor  of  civil  law  in  the  univer- 
fity of  Oxford,  of  ten  years  Handing  from 
his  matriculation  ;    and  alfo  a  barrifter  at 
law  of  four  years  ftanding  at  the  bar. 

3.  THAT  fuch  profeflbr  (by  himfelf,  or 
by  deputy  to    be   previously  approved  by 

convocation) 


§.  I.  of   toe    L  A  w. 

fue,  the  defigns  of  our  generous  patron  :  and  with  pleafure  we 
recolledt,  that  thofe  who  are  mofl  diftinguifhed  by  their  quality, 


convocation )  do  read  one  folemn  public 
lecture  on  the  laws  of  England,  and  in  the 
Englifh  language,  in  every  academical  term, 
at  certain  Hated  times  previous  to  the  com- 
mencement of  the  common  law  term  ;  or 
forfeit  twenty  pounds  for  every  omiffion  to 
MrViner's  general  fund  :  and  alfo  (by  him- 
felf,  or  by  deputy  to  be  approved,  if  occa- 
fional,  by  the  vice-chancellor  and  proctors  ; 
or,  if  permanent,  both  the  caufe  and  the 
deputy  to  be  annually  approved  by  convo- 
cation) do  yearly  read  one  complete  courfe 
of  lectures  on  the  laws  of  England,  and  in 
the  Englifh  language,,  confifting  of  fixty 
lectures  at  the  leaft ;  to  be  read  during  the 
univerfity  term  time,  with  fuch  proper  in- 
tervals that  not  more  than  four  lectures  may 
fall  within  any  fmgle  week  :  that  the  pro- 
feflbr  do  give  a  month's  notice  of  the  time 
when  the  courfe  is  to  begin,  and  do  read 
gratis  to  the  fcholars  of  MrViner's  founda- 
tion ;  but  may  demand  of  other  auditors 
fuch  gratuity  as  fhall  be  fettled  from  time 
to  time  by  decree  of  convocation  :  and 
that,  for  every  of  the  faid  fixty  lectures 
omitted,  the  profeflbr,  on  complaint  made 
to  the  vice-chancellor  within  the  year,  do 
forfeit  forty  millings  to  MrViner's  general 
fund ;  the  proof  of  having  performed  his 
duty  to  lie  upon  the  faid  profeflbr. 

4.  TH  AT  every  profeflbr  do  continue  in 
his  office  during  life,  unlefs  in  cafe  of  fuch 
mifbehaviour  as  mail  amount  to  bannition 
by  the  univerfity  ftatutes ;    or  unlefs  he  de- 
ferts  the  profeffion  of  the  law  by  betaking 
himfelf  to  another  profeffion  ;    or   unlefs, 
after  one  admonition  by  the  vice-chancellor 
and  proctors  for  notorious   neglect,   he  is 
guilty  of  another  flagrant  om  (Eon  :    in  any 
of  which  ca-fes  he  be  deprived  by  the  vice- 
chancellor,  with  confent  of  the   houfe  of 
convocation. 

5.  THAT   fuch  a  number  of  fellowships 
with  a  ftipend  of  fifty  pounds  fer  annum, 


and  fcholarfhips  with  a  ftipend  of  thirty 
pounds,  be  eftablifhed,  as  the  convocation 
fhall  from  time  to  time  ordain,  according 
to  the  ftate  of  Mr  Viner's  revenues. 

6.  TH  AT    every   fellow   be   elected   by 
convocation,  and  at  the  time  of  election  be 
unmarried,  and  at  leaft  a  mailer  of  arts  or 
bachelor  of  civil  law,    and.  a  member  of 
fome  college,  or  hall  in  the   univerfity  cf 
Oxford;   the  fchalars  of  this  foundation  or 
fuch  as  have  been  fcholars  (if  qualified  and 
approved  of  by  convocation)   to  have  the 
preference  :    that,  if  not  a  barrifter  when 
chofen,  he  be 'called  to  the  bar  within  one 
year  after  his. election  ;  but  do  refide  in  the 
univerfity  two  months  in  every  year,  or  in 
cafe  of  non-refidence  do  forfeit  the  ftipend. 
of  that  year  to  Mr  Viner's  general  fund. 

7.  THAT  every  fcholar.  be   elected    By 
convocation,  and  at  the  time  of  election  be 
unmarried,  and  a  member  of  fc-.ne  college 
or  hall  in  the  univerfity  of  Oxford,  who 
fhall  have   been  matriculated    twenty  four 
calendar  months   at  the  leafl  :    that  he  do 
take  the  degree   of  bachelor  of  civil  law 
with  all  convenient  fpeed  ;   (either  proceed- 
ing in  arts  or  otherwi-fe)  and  previous  to  his 
taking  the  fame,  between  the  fecond  and 
eighth    year    from    his    matriculation ,    be 
bound  to  attend  two  courfes  of  the  profef- 
for's  lectures,  to  be  certified  under  the  pro- 
feflbr's  hand;    and  within  one  year  after 
taking  the  fame  to  be  called  to  the  bar :  that 
he  do  annually  refide  fix  months   till  he  is 
of  four  years  ftanding,    and   four  months 
from  that  time  till  he  is  mafter  of  arts  or 
bachelor  of  civil  law;    after  which  he  be 
bound  to  refide  two  months  in  every  year;, 
or,  in  cafe  of  non-refidence,  do  forfeit  the 
ftipend  of  that  year  to  Mr  Viner's  general 
fund. 

8.  THAT    the   fcholarfliips   do  become 
void  in  cafe  of  non-attendance  on  the  pro- 
feflbr, or  not  taking  the  degree  of  bachelor 

of 


30  On    tie    S  T  u  D  y  INT  ROD. 

their  fortune,  their  ftation,  their  learning,  or  their  experience, 
have  appeared  the  moil  zealous  to  promote  the  fuccefs  of  Mr  Vi- 
ner's  eftablifhment. 

TH  E  advantages  that  might  refult  to  the  fcience  of  the  law 
itfelf,  when  a  little  more  attended  to  in  thefe  feats  of  knowlege, 
perhaps  would  be  very  confiderable.  The  leifure  and  abilities  of 
the  learned  in  thefe  retirements  might  either  fuggeft  expedients, 
or  execute  thofe  dictated  by  wifer  heads k,  for  improving  it's 
method,  retrenching  it's  fuperfluities,  and  reconciling  the  little 
contrarieties,  which  the  practice  of  many  centuries  will  necefTarily 
create  in  any  human  fyftem  :  a  tafk,  which  thofe  who  are  deeply 
employed  in  bufmefs,  and  the  more  active  fcenes  of  the  profef- 
fion,  can  hardly  condefcend  to  engage  in.  And  as  to  the  intereft, 
or  (which  is  the  fame)  the  reputation  of  the  univerfities  them- 
felves,  I  may  venture  to  pronounce,  that  if  ever  this  ftudy  mould 
arrive  to  any  tolerable  perfection  either  here  or  at  Cambridge, 
the  nobility  and  gentry  of  this  kingdom  would  not  fhorten  their 
refidence  upon  this  account,  nor  perhaps  entertain  a  worfe  opi- 
nion of  the  benefits  of  academical  education.  Neither  mould  it 
be  confidered  as  a  matter  of  light  importance,  that  while  we 
thus  extend  the  pomoeria  of  univerfity  learning,  and  adopt  a  new 
tribe  of  citizens  within  thefe  philosophical  walls,  we  intereft  a 

of  civil  law,  being  duly  admonifhed  fo  to  profeflorfliip,  fellowfhips,  or  fcholarfhips, 
do  by  the  vice-chancellor  and  prodtors :  and  the  profits  of  the  current  year  be  ratably 
that  both  fellowmips  and  fcholarfhips  do  ex-  divided  between  the  predeceflbr  or  his  re- 
pire  at  the  end  of  ten  years  after  each  re-  prefentatives,  and  the  fucceflbr ;  and  that  a 
fpeftive  election  ;  and  become  void  in  cafe  new  election  be  had  within  one  month  af- 
of  grofs  mifbehaviour,  non-refidence  for  two  terwards,  unlefs  by  that  means  the  time  of 
years  together,  marriage,  not  being  called  election  mall  fall  within  any  vacation,  in 
to  the  bar  within  the  time  before  limited,  which  cafe  it  be  deferred  to  the  firft  week 
(being  duly  admonilhed  fo  to  be  by  the  in  the  next  fall  term.  And  that  before  any 
vice-chancellor  and  proctors)  or  deferting  convocation  mall  be  held  for  fuch  eleclion, 
the  profefiion  of  the  law  by  following  any  or  for  any  other  matter  relating  to  Mr  VL 
other  profeflion:  and  that  in  any  of  thefe  ner's  benefaction,  ten  days  public  notice  be 
cafes  the  vice-chancellor,  with  confent  of  given  to  each  college  and  hall  of  the  con- 
convocation,  do  declare  the  place  actually  vocation,  and  the  caufe  of  convoking  it. 
void.  k  See  lord  Bacon's  propofals  and  offer  of 
9.  TH  AT  in  cafe  of  any  vacancy  of  the  a  digeft. 

very 


§.  i.  of  the    L  A  w.  31 

very  numerous  and  very  powerful  profeffion  in  the  prefervation 
of  our  rights  and  revenues. 

Fo  R  I  think  it  paft  difpute  that  thofe  gentlemen,  who  re- 
ibrt  to  the  inns  of  court  with  a  view  to  purfue  the  profeffion, 
will  find  it  expedient  (whenever  it  is  practicable)  to  lay  the  pre- 
vious foundations  of  this,  as  well  as  every  other  fcience,  in  one 
of  our  learned  univerfities.  We  may  appeal  to  the  experience  of 
every  fenfible  lawyer,  whether  any  thing  can  be  more  hazardous 
or  difcouraging  than  the  ufual  entrance  on  the  ftudy  of  the  law. 
A  raw  and  unexperienced  youth,  in  the  moft  dangerous  feafon  of 
life,  is  tranfplanted  on  a  fudden  into  the  midft  of  allurements  to 
pleafure,  without  any  reftraint  or  check  but  what  his  own  pru- 
dence can  fuggeft ;  with  no  public  direction  in  what  courfe  to 
purfue  his  enquiries  ;  no  private  afliftance  to  remove  the  diftrerTes 
and  difficulties,  which  will  always  embarafs  a  beginner.  In  this 
lituation  he  his  expected  to  fequefter  himfelf  from  the  world,  and 
by  a  tedious  lonely  procefs  to  extract  the  theory  of  law  from  a 
mafs  of  undigefted  learning  j  or  elfe  by  an  affiduous  attendance 
on  the  courts  to  pick  up  theory  and  practice  together,  fufficient 
to  qualify  him  for  the  ordinary  run  of  bufmefs.  How  little, 
therefore  is  it  to  be  wondered  at,  that  we  hear  of  fo  frequent 
mifcarriages ;  that  fo  many  gentlemen  of  bright  imaginations 
grow  weary  of  fo  unpromifing  a  fearch ',  and  addict  themfelves 
Avholly  to  amufements,  or  other  lefs  innocent  purfuits ;  an-d  that 
fo  many  perfons  of  moderate  capacity  confufe  themfelves  at  firft 
fetting  out,  and  continue  ever  dark  and  puzzled  during  the  re- 
mainder of  their  lives  ! 

TH  E  evident  want  of  fome  afliftance  in  the  rudiments  of  le- 
gal knowlege  has  given  birth  to  a  practice,  which,  if  ever  it 
had  grown  to  be  general,  muft  have  proved  of  extremely  perni- 


1  Sir  Henry  Spelman,  in  the  preface  to 
his  gloflary,  has  given  us  a  very  lively  pic- 
ture of  his  own  diftrefs  upon  this  occafion. 
"  Emifit  me  mater  Londinum,  juris  nojlri  ca- 
M  pejfcndi  gratia  ;  cujtu  cum  'veJUbu.liim  falit- 


'  taffem,  n'ferffimfue  littg-.taw  peregrinam,  die- 
'  lefium  barbaram,  methodum  ineoncinnam,  mo- 
'  km  non  ingentem  foluai  fed  perp  tuis  humeris 
' fuftinendam,  excidit  tnibi  (fateorj  animus,. 

'  &c>'*  cious- 


32  On    the    S  T  u  D  Y  IN  TROD. 

cious  confequence  :  I  mean  the  cuftom,  by  fome  fo  very  warmly 
recommended,  to  drop  all  liberal  education,  as  of  no  ufe  to  (Indents 
in  the  law;  but  to  place  them,  in  it's  ftead,  at  the  defk  of  fome 
fkilful  attorney ;  in  order  to  initiate  them  early  in  all  the  depths 
of  practice,  and  render  them  more  dextrous  in  the  mechanical 
part  of  bulinefs.  A  few  inftances  of  particular  perfons,  (men  of 
excellent  learning,  and  unblemifhed  integrity)  who,  in  fpight  of 
this  method  of  education,  have  fhone  in*  the  foremoft  ranks  of 
the  bar,  have  afforded  fome  kind  of  fanction  to  this  illiberal  path 
to  the  profeffion,  and  biafled  many  parents,  of  (hortfighted  judg- 
ment, in  it's  favour :  not  confidering,  that  there  are  fome  ge- 
niufes,  formed  to  overcome  all  difadvantages,  and  that  from  fuch 
particular  instances  no  general  rules  can  be  formed ;  nor  obfer- 
ving,  that  thofe  very  perfons  have  frequently  recommended  by 
the  moft  forcible  of  all  examples,  the  difpofal  of  their  own  off- 
fpring,  a  very  different  foundation  of  legal  ftudies,  a  regular  aca- 
demical education.  Perhaps  too,  in  return,  I  could  now  direct 
their  eyes  to  our  principal  feats  of  juftice,  and  fuggeft  a  few 
hints,  in  favour  of  univerfity  learning"1: — but  in  thefe  all  who 
hear  me,  I  know,  have  already  prevented  me. 

MAKING  therefore  due  allowance  for  one  or  two  mining 
exceptions,  experience  may  teach  us  to  foretell  that  a  lawyer  thus 
educated  to  the  bar,  in  fubfervience  to  attorneys  and  folicitors  ", 
will  find  he  has  begun  at  the  wrong  end.  If  practice  be  the 
whole  he  is  taught,  practice  muft  alfo  be  the  whole  he  will  ever 
know  :  if  he  be  uninftructed  in  the  elements  and  firft  principles 
upon  which  the  rule  of  practice  is  founded^  the  leafl  variation 
from  eftabliflied  precedents  will  totally  diftract  and  bewilder  him : 
ita  lex  fcripta  eft°  is  the  utmoft  his  knowlege  will  arrive  at  j  he 
muft  never  afpire  to  form,  and  feldom  expect  to  comprehend, 
any  arguments  drawn  a  priori,  from  the  fpirit  of  the  laws  and 
the  natural  foundations  of  juftice. 

m  The  four  higheft  judicial  offices  were  and  the  fourth  a  fellow  of  Trinity  college, 

at  that  time  filled  by  gentlemen,  two  of  Cambridge. 

whom  had  been  fellows  of  All  Souls  col-         n  See  Kennel's  life  of  Somner.  p.  67. 
lege  ;   another,  ftudent  of  Chrift-Church  ;         °  Ff.  40. 9.  12.  NoR 


§.  i.  of   the    LA  w.  33 

N  o  R  is  this  all ;  for  (as  few  perfons  of  birth,  or  fortune,  or 
even  of  fcholaftic  education,  will  fubmit  to  the  drudgery  of  fer- 
vitude  and  the  manual  labour  of  copying  the  tram  of  an  office ) 
fhould  this  infatuation  prevail  to  any  confiderable  degree,  we 
muft  rarely  expect  to  fee  a  gentleman  of  diftindtion  or  learning 
at  the  bar.  And  what  the  confequence  may  be,  to  have  the  in- 
terpretation and  enforcement  of  the  laws  (which  include  the  en- 
tire difpofal  of  our  properties,  liberties,  and  lives}  fall  wholly 
into  the  hands  of  obfcure  or  illiterate  men,  is  matter  of  very 
public  concern. 

THE  inconveniences  here  pointed  out  can  never  be  eftedually 
prevented,  but  by  making  academical  education  a  previous  ftep 
to  the  profeffion  of  the  common  law,  and  at  the  fame  time  ma- 
king the  rudiments  of  the  law  a  part  of  academical  education. 
For  fciences  are  of  a  fociable  difpofition,  and  flourim  beft  in  the 
neighbourhood  of  each  other :  nor  is  there  any  branch  of  learn- 
ing, but  may  be  helped  and  improved  by  afliftances  drawn  from 
other  arts.  If  therefore  the  fludent  in  our  laws  hath  formed  both 
his  fentiments  and  ftyle,  by  perufal  and  imitation  of  the  pureft 
claflical  writers,  among  whom  the  hiftorians  and  orators  will  beft 
deferve  his  regard ;  if  he  can  reafon  with  precifion,  and  feparate 
argument  from  fallacy,  by  the  clear  fimple  rules  of  pure  unfo- 
phifticated  logic ;  if  he  can  fix  his  attention,  and  fteadily  purfue 
truth  through  any  the  moft  intricate  deduction,  by  the  ufe  of 
mathematical  demonftrations  ;  if  he  has  enlarged  his  conceptions 
of  nature  and  art,  by  a  view  of  the  feveral  branches  of  genuine, 
experimental,  philofophy;  if  he  has  imprefled  on  his  mind  the 
found  maxims  of  the  law  of  nature,  the  beft  and  moft  authentic 
foundation  of  human  laws ;  if,  laftly,  he  has  contemplated  thofe 
maxims  reduced  to  a  practical  fyftem  in  the  laws  of  imperial 
Rome;  if  he  has  done  this  or  any  part  of  it,  (though  all  may 
be  eafily  done  under  as  able  inftructors  as  ever  graced  any  feats 
of  learning)  a  ftudent  thus  qualified  may  enter  upon  the  ftudy 
of  the  law  with  incredible  advantage  and  reputation.  And  if, 

E  at 


3 4.  On    the    S  T  u  D  Y  I  N  T  R  o  D. 

at  the  conclufion,  or  during  the  acquifition  pf  thefe  accomplim- 
ments,  he  will  afford  himieif  here  a  year  or  two's  farther  leifure, 
to  lay  the  foundation  of  his  future  labours  in  a  folid  fcientifical 
method,  without  thirfting  too  early  to  attend  that  practice  which 
it  is  impoitible  he  mould  rightly  comprehend,  he  will  afterwards 
proceed  with  the  greateil  eafe,  and  will  unfold  the  moft  intricate 
points  with  an  intuitive  rapidity  and  clearnefs. 

I  SHALL  not  infift  upon  fuch  motives  as  might  be  drawn 
from  principles  of  oeconomy,  and  are  applicable  to  particulars 
only  :  I  realbn  upon  more  general  topics.  And  therefore  to  the 
qualities  of  the  head,  which  I  have  juft  enumerated,  I  cannot 
but  add  thofe  of  the  heart ;  affectionate  loyalty  to  the  king,  a 
zeal  for  liberty  and  the  conftitution,  a  fenfe  of  real  honour,  and 
well  grounded  principles  of  religion  ;  as  neceflary  to  form  a  truly 
valuable  Engliih  lawyer,  a  Hyde,  a  Hale,  or  a  Talbot.  And, 
whatever  the  ignorance  of  fome,  or  unkindnefs  of  others,  may 
have  heretofore  untruly  fuggefted,  experience  will  warrant  us  to 
affirm,  that  thefe  endowments  of  loyalty  and  public  fpirit,  of 
honour  and  religion,  are  no  where  to  be  found  in  more  high  per- 
fection than  in  the  two  univeriities  of  this  kingdom. 

BEFORE  I  conclude,  it  may  perhaps  be  expected,  that  I  lay 
before  you  a  fhort  and  general  account  of  the  method  I  propofe 
to  follow,  in  endeavouring  to  execute  the  truft  you  have  been 
pleafed  to  repofe  in  my  hands.  And  in  thefe  folemn  lectures, 
which  are  ordained  to  be  read  at  the  entrance  of  every  term, 
(  more  perhaps  to  do  public  honour  to  this  laudable  inftitution, 
than  for  the  private  inftruction  of  individuals15)  I  prefume  it  will 
beft  anfwer  the  intent  of  our  benefactor  and  the  expectation  of 
this  learned  body,  if  I  attempt  to  illuftrate  at  times  fuch  detached 
titles  of  the  law,  as  are  the  moft  eafy  to  be  underftood,  and  moft 
capable  of  hiftorical  or  critical  ornament.  But  in  reading  the 
complete  courfe,  which  is  annually  configned  to  my  care,  a  more 
regular  method  will  be  neceffary ;  and,  till  a  better  is  propofed, 

T  See  Lowth's  Oratio  Creivicna,  p.  ;6c. 

I  {hall 


§.  i.  of    the    LAW.  35 

I  mall  take  the  liberty  to  follow  the  fame  that  I  have  already  fub- 
mitted  to  the  public  q.  To  fill  up  and  finim  that  outline  with 
propriety  and  corredlnefs,  and  to  render  the  whole  intelligible  to 
the  uninformed  minds  of  beginners,  (whom  we  are  too  apt  to 
fuppofe  acquainted  with  terms  and  ideas,  which  they  never  had 
opportunity  to  learn)  this  muft  be  my  ardent  endeavour,  though 
by  no  means  my  promife  to  accomplifh.  You  will  permit  me 
however  very  briefly  to  defcribe,  rather  what  I  conceive  an  aca- 
demical expounder  of  the  laws  ihould  do,  than  what  I  have  ever 
known  to  be  done. 

HE  mould  confider  his  courfe  as  a  general  map  of  the  law, 
marking  out  the  fhape  of  the  country,  it's  connexions  and  boun- 
daries, it's  greater  divifions  and  principal  cities  :  it  is  not  his  bufi- 
nefs  to  defcribe  minutely  the  fubordinate  limits,  or  to  fix  the  lon- 
gitude and  latitude  of  every  inconfiderable  hamlet.  His  attention 
ihould  be  engaged,  like  that  of  the  readers  in  Fortefcue's  inns  of 
chancery,  "  in  tracing  out  the  originals  and  as  it  were  the  eler 
"  ments  of  the  law."  For  if,  as  Juftinian  r  has  obferved,  the 
tender  understanding  of  the  ftudent  be  loaded  at  the  firfl  with  a 
multitude  and  variety  of  matter,  it  will  either  occalion  him  to 
defert  his  ftudies,  or  will  carry  him  heavily  through  them,  with 
much  labour,  delay,  and  defpondence.  Thefe  originals  mould 
be  traced  to  their  fountains,  as  well  as  our  diflance  will  permit ; 
to  the  cuftoms  of  the  Britons  and  Germans,  as  recorded  by  Cae- 
far  and  Tacitus  ;  to  the  codes  of  the  northern  nations  on  the  con- 
tinent, and  more  efpecially  to  thofe  of  our  own  Saxon  princes  ; 
to  the  rules  of  the  Roman  law,  either  left  here  in  the  days  of 
Papinian,  or  imported  by  Vacarius  and  his  followers  ;  but,  above 

•i  The  Analyfis  of  the  laws  of  England,  Alioqui,  Ji  ftatim  al  initio  rudem  aJhuc  et  in- 

firtt  publifhed,  j4.D.l-$6,  and  exhibiting  frmum  animum  Jludiofi  mult itudine  aciiarietate 

the  order  and  principal  divifions  of  the  en-  rerun  oner  animus,  duorum  alterum,  out  dej'tr- 

fuing  COMMENTARIES;  which  were  torem  ftudiorum  efficiemus,  aut  cum  magno  labo- 

originally  fubmitted  to  the  univerfity  in  a  re,  faepe  etiam  cum  diffidattia  (quae  plerumque 

private  courfe  of  leftures,  A.  D.  1753.  ju-ve/ies  averlit)  ferius  ad  id  ptrduce'mus,  aj 

'  Incipientikuf  nobis  exponere  jura  ptpuli  Fo-  quod,  h-Tjiort  "jiei  duflus,  fine  magno  labore  et 

man'',  it  a  widen!  ur  tradi  pcjje  commodij/ime ,  Ji  Jiiie  ulla  diffidentia  maturius  perdue  i  patuijjet. 

prima  levi  ac  fimplici  via  jiigula  traduntur  :  /«/?.  I.  1.2. 

E  2  all, 


36  On    the.    S  T  u  D  Y  IN  TROD. 

all,  to  that  inexhauftible  refervoir  of  legal  antiquities  and  learn- 
ing, the  feodal  law,  or,  as  Spelman5  has  entitled  it,  the  law  of 
nations  in  our  weftern  orb.  Thefe  primary  rules  and  fundamen- 
tal principles  mould  be  weighed  and  compared  with  the  precepts 
of  the  law  of  nature,  and  the  practice  of  other  countries  ;  mould 
be  explained  by  reafons,  illuftrated  by  examples,  and  confirmed 
by  undoubted  authorities ;  their  hiftory  mould  be  deduced,  their 
changes  and  revolutions  obferved,  and  it  mould  be  fliewn  how 
far  they  are  connected  with,  or  have  at  any  time  been  affected  by, 
the  civil  tranfactions  of  the  kingdom. 

A  PLAN  of  this  nature,  if  executed  with  care  and  ability, 
cannot  fail  of  adminiftring  a  moft  ufeful  and  rational  entertain- 
ment to  ftudents  of  all  ranks  and  profeffions  ;  and  yet  it  mufl  be 
confefied  that  the  ftudy  of  the  laws  is  not  merely  a  matter  of 
amufement :  for,  as  a  very  judicious  writer'  has  obferved  upon  a 
llmilar  occafion,  the  learner  "  will  be  confiderably  difappointed 
"  if  he  looks  for  entertainment  without  the  expenfe  of  attention." 
An  attention,  however,  not  greater  than  is  ufually  beftowed  in 
mattering  the  rudiments  of  other  fciences,  or  fometirnes  in  pur- 
fuing  a  favorite  recreation  or  exercife.  And  this  attention  is  not 
equally  necerTary  to  be  exerted  by  every  ftudent  upon  every  occa- 
fion. Some  branches  of  the  law,  as  the  formal  procefs  of  civil 
fuits,  and  the  fubtile  diftinctions  incident  to  landed  property, 
which  are  the  moft  difficult  to  be  thoroughly  underftood,  are  the 
leaft  worth  the  pains  of  under/landing,  except  to  fuch  gentlemen 
as  intend  to  purfue  the  profeflion.  To  others  I  may  venture  to 
apply,  with  a  flight  alteration,  the  words  of  fir  John  Fortefcue", 

'  Of  parliaments.  57.  mum  tuum.  —  Nofco  namque  ingcnii  tui  perfpi- 

*  Dr Taylor's  pref.  to  Elem.  of  civil  law.  cacitatcm,  qua  audafier  prcnitntio  quod  in  kgi- 

"   Till,  princeps,   necejje  nan  erit  myftcria  Ic-  bus  Hit's   (licet  earttm  peritia,   qualis  jitdicibu: 

fis  Angliae  hngo  difciflinatu  r  mare.     Sitfficiet  neceffaria  ej),  i<ix  iiiginti  annonan  lucubi'atio- 

itbi,  —  et  fatis  denom':nari  legijla  mereberis,  fi  nikus  acquiraturj    tu  daflrhmm  princ'ipi  con- 

legutn  priticipia  et  caufas,    ujque  ad  element!*.,  gruam  in  anno  uno  Jufficienter  nancifcerii  ',  nee 

difeifvli  more  indagmjeris. — Square  tu,  prin-  interim  militarem  difciplhiam,  ad  quam  tarn  ar- 

cepsferenijpme,  par--vo  tempore,  parva  indujlria,  denter  anhelas,  negliges;   fed  ca,    recreaticnis 

Sufficient er  eris  in  hgibiis  regni  Angliae  eruditus,  loco,  etiam  anno  illo  in  ad  libitum  ptrfnierii. 

dummodo  ad  ejas  afprebenjjonem  tu  confer  as  ani-  c.  8. 

when 


§.  i.  of    the    LAW.  37 

when  firft  his  royal  pupil  determines  to  engage  in  this  ftudy. 
«  It  will  not  be  neceffary  for  a  gentleman,  as  fuch,  to  examine 
"  with  a  clofe  application  the  critical  niceties  of  the  law.  It  will 
«  fully  be  fufficient,  and  he  may  well  enough  be  denominated  a 
"  lawyer,  if  under  the  inftruction  of  a  mailer  he  traces  up  the 
«  principles  and  grounds  of  the  law,  even  to  their  original  ele- 
«  ments.  Therefore  in  a  very  fhort  period,  and  with  very  little 
«'  labour,  "he  may  be  fufficiently  informed  in  the  laws  of  his 
«  country,  if  he  will  but  apply  his  mind  in  good  earneft  to  re- 
"  ceive  and  apprehend  them.  For,  though  fuch  knowlege  as  is 
"  neceflary  for  a  judge  is  hardly  to  be  acquired  by  the  lucubra- 
"  tions  of  twenty  years,  yet  with  a  genius  of  tolerable  perfpica- 
"  city,  that  knowlege  which  is  fit  for  a  perfon  of  birth  or  con- 
"  dition  may  be  learned  in  a  lingle  year,  without  neglecting  his 
"  other  improvements." 

To   the  few  therefore   (the  very  few,   I  am  perfuaded,.)   that 
entertain  fuch  unworthy  notions  of  an  univerfity,  as  to  fuppofe  it 
intended  for  mere  difiipation  of  thought  j    to  fuch  as  mean  only 
to  while  away  the  aukward  interval  from  childhood  to  twenty 
one,  between  the  reftraints  of  the  fchool  and  the  licentioufnefs 
of  politer  life,  in  a  calm   middle  ftate  of  mental  and  of  moral 
inactivity ;  to  thefe  Mr  Viner  gives  no  invitation  to  an  entertain- 
ment which  they  never  can  relilh.  But  to  the  long  and  illuftrious 
train  of  noble  and  ingenuous  youth,  who  are  not  more  diflin- 
guifhed  among  us  by  their  birth  and  poflefilons,  than  by  the  re- 
gularity of  their  conduct  and  their  thirfl  after  ufeful  knowlege, 
to  thefe  our  benefactor  has  confecrated  the  fruits  of  a  long  and 
laborious  life,  worn  out  in  the  duties  of  his  calling ;    and  will 
joyfully  reflect  (if  fuch  reflexions  can  be  now  the  employment  of 
his  thoughts)   that  he  could  not  more  effectually  have  benefited 
pofterity,  or  contributed  to  the  fervice  of  the  public,  than  by 
founding  an  inftitution  which  may  inftruct  the  rifing  generation 
in  the  wifdom  of  our  civil  polity,  and  inform  them  with  a  defire 
to  be  flill  better  acquainted  with  the  laws  and  conflitution  of 
their  country. 


38  Of  the  NATURE  of  IN  TROD. 


SECTION     THE     SECOND. 
OF   THE    NATURE   OF    LAWS  IN   GENERAL. 


I  AW,  in  it's  moft  general  and  comprehenfive  fenfe,  fignifies 
_^  a  rule  of  action  ;  and  is  applied  indifcriminately  to  all  kinds 
of  action,  whether  animate  or  inanimate,  rational  or  irrational. 
Thus  we  lay,  the  laws  of  motion,  of  gravitation,  of  optics,  or 
mechanics,  as  well  as  the  laws  of  nature  and  of  nations.  And 
it  is  that  rule  of  action,  which  is  prefcribed  by  fome  fuperior, 
and  which  the  inferior  is  bound  to  obey. 

TH  u  s  when  the  fupreme  being  formed  the  univerfe,  and 
created  matter  out  of  nothing,  he  impreffed  certain  principles 
upon  that  matter,  from  which  it  can  never  depart,  and  without 
which  it  would  ceafe  to  be.  When  he  put  that  matter  into  mo- 
tion, he  eftablimed  certain  laws  of  motion,  to  which  all  move- 
able  bodies  muft  conform.  And,  to  defcend  from  the  greatest 
operations  to  the  fmalleft,  when  a  workman  forms  a  clock,  or 
other  piece  of  mechanifm,  he  eftablifhes  at  his  own  pleafure  cer- 
tain arbitrary  laws  for  it's  direction ;  as  that  the  hand  mall  de- 
fcribe  a  given  fpace  in  a  given  time  ;  to  which  law  as  long  as  the 
work  conforms,  fo  long  it  continues  in  perfection,  and  anfwers 
the  end  of  it's  formation. 

I  F  we  farther  advance,  from  mere  inactive  matter  to  vegetable 
and  animal  life,  we  mall  find  them  ftill  governed  by  laws ;  more 
numerous  indeed,  but  equally  fixed  and  invariable.  The  whole 
progreis  of  plants,  from  the  feed  to  the  root,  and  from  thence  to 
the  feed  again;  —  the  method  of  animal  nutrition,  digeftion, 

fecretion, 


§.  2.  LAWS    in  general.  39 

fecretion,  and  all  other  branches  of  vital  oeconomy;---  are  not 
left  to  chance,  or  the  will  of  the  creature  itfelf,  but  are  perform- 
ed in  a  wondrous  involuntary  manner,  and  guided  by  unerring 
rules  laid  down  by  the  great  creator. 

THIS  then  is  the  general  fignification  of  law,  a  rule  of  ac- 
tion dictated  by  feme  fuperior  being ;  and  in  thofe  creatures  that 
have  neither  the  power  to  think,  nor  to  will,  fuch  laws  muft  be 
invariably  obeyed,  fo  long  as  the  creature  itfelf  fubfiits,  for  it's 
exiftence  depends  on  that  obedience.  But  laws,  in  their  more 
confined  fenfe,  and  in  which  it  is  our  prefent  bulinefs  to  confider 
them,  denote  the  rules,  not  of  action  in  genera],  but  of  human 
action  or  conduct :  that  is,  the  precepts  by  which  man,  the  no- 
bleft  of  all  fublunary  beings,  a  creature  endowed  with  both  rea- 
fon  and  freewill,  is  commanded  to  make  ufe  of  thofe  faculties  irt 
the  general  regulation  of  his  behaviour.. 

MAN,  confidered  as  a  creature,  mufl  neceiTarily  be  fubject  to 
the  laws  of  his  creator,  for  he  is  entirely  a  dependent  being.  A 
being,  independent  of  any  other,  has  no  rule  to  purfue,  but  fuch 
as  he  prefcribes  to  himfelf;.  but  a  ftate  of  dependance  will  in- 
evitably oblige  the  inferior  to  take  the  will  of  him,  on  whom 
he  depends,  as  the  rule  of  his  conduct :  not  indeed  in  every 
particular,  but  in  all  thofe  points  wherein  his  dependance  con- 
fifts.  This  principle  therefore  has  more  or  lefs  extent  and  effect, 
in  proportion  as  the  fuperiority  of  the  one  and  the  dependance 
of  the  other  is  greater  or  lefs,  abfolute  or  limited.  And  confe- 
quently,  as  man  depends  abfolutely  upon  his  maker  for  every 
thing,  it  is  neceflary  that  he  mould  in  all  points  conform  to  his- 
maker's  will. 

THIS  will  of  his  maker  is  called  the  law  of  nature.  For  as 
God,  when  h^.  created  matter,  and  endued  it  with  a  principle  of 
mobility,  eftablifhed  certain  rules  for  the  perpetual  direction  of 
that  motion ;  fo,  when  he  created  man,  and  endued  him  with 
freewill  to  conduct  himfelf  in  all  parts  of  life,  he  laid  down  cer- 
tain 


4O  Of  the  NATURE  of  INTRO D, 

tain  immutable  laws  of  human  nature,  whereby  that  freewill  is 
in  fome  degree  regulated  and  reftrained,  and  gave  him  alfo  the 
faculty  of  reafon  to  difcover  the  purport  of  thofe  laws. 

CONSIDERING  the  creator  only  as  a  being  of  infinite  power, 
he  was  able  unqueftionably  to  have  prefcribed  whatever  laws  he 
pleafed  to  his  creature,  man,  however  unjuft  or  fevere.  But  as 
he  is  alfo  a  being  of  infinite  ivifdom,  he  has  laid  down  only  fuch 
laws  as  were  founded  in  thofe  relations  of  juftice,  that  exifted  in 
the  nature  of  things  antecedent  to  any  pofitive  precept.  Thefe 
are  the  eternal,  immutable  laws  of  good  and  evil,  to  which  the 
creator  himfelf  in  all  his  difpenfations  conforms  ;  and  which  he 
has  enabled  human  reafon  to  difcover,  fo  far  as  they  are  neceflary 
for  the  conduct  of  human  actions.  Such  among  others  are  thefe 
principles :  that  we  fhould  live  honeftly,  mould  hurt  nobody, 
and  mould  render  to  every  one  his  due ;  to  which  three  general 
precepts  JuftinianMias  reduced  the  whole  doctrine  of  law. 

BUT  if  the  dilcovery  of  thefe  firfl  principles  of  the  law  of 
nature  depended  only  upon  the  due  exertion  of  right  reafon,  and 
could  not  otherwife  be  attained  than  by  a  chain  of  metaphyfical 
difquifitions,  mankind  would  have  wanted  fome  inducement  to 
have  quickened  their  inquiries,  and  the  greater  part  of  the  world 
would  have  refted  content  in  mental  indolence,  and  ignorance  it's 
infeparable  companion.  As  therefore  the  creator  is  a  being,  not 
only  of  infinite  power,  and  icifdom,  but  alfo  of  infinite  goodnefs, 
he  has  been  pleafed  fo  to  contrive  the  conftitution  and  frame  of 
humanity,  that  we  fhould  want  no  other  prompter  to  enquire 
after  and  purfue  the  rule  of  right,  but  only  our  own  felf-love, 
that  univerfal  principle  of  action.  For  he  has  fo  intimately  con- 
nected, fo  infeparably  interwoven  the  laws  of  eternal  juftice  with 
the  happinefs  of  each  individual,  that  the  latter  cannot  be  attained 
but  by  obferving  the  former ;  and,  if  the  former  be  punctually 
obeyed,  it  cannot  but  induce  the  latter.  In  confequence  of  which 
mutual  connection  of  juftice  and  human  felicity,  he  has  not  per- 

a  Juris praceepta  /'tint  bticc,  /.'  .:.v  /',•  il'^crc,  .ilterum  KOI: l.icJtrc,  fu urn  ctiique  tr.lucre.  Inft.  1.1.3. 

plexed 


§.2.  LAWS    in  general.  41 

plexed  the  law  of  nature  with  a  multitude  of  abflracted  rules 
and  precepts,  referring  merely  to  the  fitnefs  or  unfitnefs  of  things, 
as  fome  have  vainly  furmifed ;  but  has  gracioufly  reduced  the  rule 
of  obedience  to  this  one  paternal  precept,  "that  man  mould 
"  purfue  his  own  happinefs."  This  is  the  foundation  of  what  we 
call  ethics,  or  natural  law.  For  the  feveral  articles,  into  which 
it  is  branched  in  our  fyftems,  amount  to  no  more  than  demon- 
ftrating,  that  this  or  that  action  tends  to  man's  real  happinefs, 
and  therefore  very  juftly  concluding  that  the  performance  of  it  is 
a  part  of  the  law  of  nature  j  or,  on  the  other  hand,  that  this  or 
that  action  is  destructive  of  man's  real  happinefs,  and  therefore 
that  the  law  of  nature  forbids  it. 

THIS  law  of  nature,  being  co-eval  with  mankind  and  dicta- 
ted by  God  himfelf,  is  of  courfe  fuperior  in  obligation  to  any 
other.  It  is  binding  over  all  the  globe,  in  all  countries,  and  at 
all  times  :  no  human  laws  are  of  any  validity,  if  contrary  to  this; 
and  fuch  of  them  as  are  valid  derive  all  their  force,  and  all  their 
authority,  mediately  or  immediately,  from  this  original. 

B  u  T  in  order  to  apply  this  to  the  particular  exigencies  of 
each  individual,  it  is  flill  neceffary  to  have  recourfe  to  reafon  : 
whofe  office  it  is  to  difcover,  as  was  before  obferved,  what  the 
law  of  nature  directs  in  every  circumflance  of  life  ;  by  confider- 
ing,  what  method  will  tend  the  moil  effectually  to  our  own  fub- 
ftantial  happinefs.  And  if  our  reafon  were  always,  as  in  our  firfl 
anceftor  before  his  tranfgreffion,  clear  and  perfect,  unruffled  by 
pafllons,  unclouded  by  prejudice,  unimpaired  by  difeafe  or  in- 
temperance, the  talk  would  be  pleafant  and  eafy  ;  we  mould  need 
no  other  guide  but  this.  But  every  man  now  finds  the  contrary 
in  his  own  experience  ;  that  his  reafon  is  corrupt,  and  his  under- 
ftanding  full  of  ignorance  and  error. 

THIS  has  given  manifold  occafion  for  the  benign  interpofition 
of  divine  providence ;  which,  in  companion  to  the  frailty,  the 
imperfection,  and  the  blindnefs  of  human  reafon,  hath  been 

F  pleafed, 


42  Of  the  NATURE  of  INTRO  D. 

pleafed,  at  fundry  times  and  in  divers  manners,  to  difcover  and 
enforce  it's  laws  by  an  immediate  and  direct  revelation.  The  doc- 
trines thus  delivered  we  call  the  revealed  or  divine  law,  and  they 
are  to  be  found  only  in  the  holy  fcriptures.  Thefe  precepts,  when 
revealed,  are  found  upon  companion  to  be  really  a  part  of  the 
original  law  of  nature,  as  they  tend  in  all  their  confequences  to 
man's  felicity.  But  we  are  not  from  thence  to  conclude  that  the 
knowlege  of  thefe  truths  was  attainable  by  reafon,  in  it's  prefent 
corrupted  ftate ;  fince  we  find  that,  until  they  were  revealed, 
they  were  hid  from  the  wifdom  of  ages.  As  then  the  moral 
precepts  of  this  law  are  indeed  of  the  fame  original  with  thofe 
of  the  law  of  nature,  fo  their  intrinfic  obligation  is  of  equal 
ilrength  and  perpetuity.  Yet  undoubtedly  the  revealed  law  is 
of  infinitely  more  authenticity  than  that  moral  fyltem,  which  is 
framed  by  ethical  writers,  and  denominated  the  natural  law. 
Becaufe  one  is  the  law  of  nature,  expreffly  declared  fo  to  be  by 
God  himfelf ;  the  other  is  only  what,  by  the  afliftance  of  human 
reafon,  we  imagine  to  be  that  law.  If  we  could  be  as  certain 
of  the  latter  as  we  are  of  the  former,  both  would  have  an  equal 
authority  :  but,  till  then,  they  can  never  be  put  in  any  compe- 
tition together. 

UPON  thefe  two  foundations,  the  law  of  nature  and  the  law 
of  revelation,  depend  all  human  laws ;  that  is  to  fay,  no  human 
laws  mould  be  fuffered  to  contradict  thefe.  There  is,  it  is  true, 
a  great  number  of  indifferent  points,  in  which  both  the  divine 
law  and  the  natural  leave  a  man  at  his  own  liberty ;  but  which 
are  found  neceffary  for  the  benefit  of  fociety  to  be  restrained 
within  certain  limits.  And  herein  it  is  that  human  laws  have 
their  greateft  force  and  efficacy ;  for,  with  regard  to  fuch  points 
as  are  not  indifferent,  human  laws  are  only  declaratory  of,  and 
act  in  fubordination  to,  the  former.  To  inftance  in  the  cafe  of 
murder  :  this  is  expreflly  forbidden  by  the  divine,  and  demon- 
ftrably  by  the  natural  law ;  and  from  thefe  prohibitions  arifes  the 
true  unlawfulnefs  of  this  crime.  Thofe  human  laws,  that  annex 
a  puniftiment  to  it,  do  not  at  all  iacreate  it's  moral  guilt,  or 

fuperadd 


§.2.  LAWS    in  general.  43 

fuperadd  any  frefli  obligation  in  foro  confdentiae  to  abftain  from 
it's  perpetration.  Nay,  if  any  human  law  mould  allow  or  injoin 
us  to  commit  it,  we  are  bound  to  tranfgrefs  that  human  law,  or 
elfe  we  muft  offend  both  the  natural  and  the  divine.  But  with  re- 
gard to  matters  that  are  in  themfelves  indifferent,  and  are  not  com- 
manded or  forbidden  by  thofe  fuperior  laws;  fuch,  for  inftance,  as 
exporting  of  wool  inte  foreign  countries  ;  here  the  inferior  legif- 
lature  has  fcope  and  opportunity  to  interpofe,  and  to  make  that 
action  unlawful  which  before  was  not  fo. 

I  F  man  were  to  live  in  a  ftate  of  nature,  unconnected  with 
other  individuals,  there  would  be  no  occaiion  for  any  other  laws, 
than  the  law  of  nature,  and  the  law  of  God.  Neither  could  any 
other  law  poffibly  exift ;  for  a  law  always  fuppofes  fome  fuperior 
who  is  to  make  it ;  and  in  a  flate  of  nature  we  are  all  equal, 
without  any  other  fuperior  but  him  who  is  the  author  of  our  be- 
ing. But  man  was  formed  for  fociety  ;  and,  as  is  demonftrated 
by  the  writers  on  this  fubjectb,  is  neither  capable  of  living  alone, 
nor  indeed  has  the  courage  to  do  it.  However,  as  it  is  impoffible 
for  the  whole  race  of  mankind  to  be  united  in  one  great  fociety, 
they  muft  necefTarily  divide  into  many  -,  and  form  feparate  dates, 
commonwealths,  and  nations;  entirely  independent  of  each  other, 
and  yet  liable  to  a  mutual  intercourfe.  Hence  arifes  a  third  kind 
of  law  to  regulate  this  mutual  intercourfe,  called  "  the  law  of 
*'  nations ;"  which,  as  none  of  thefe  ftates  will  acknowlege  a 
fuperiority  in  the  other,  cannot  be  dictated  by  either  ;  but  de- 
pends entirely  upon  the  rules  of  natural  law,  or  upon  mutual 
compacts,  treaties,  leagues,  and  agreements  between  thefe  feveral 
communities  :  in  the  construction  alfo  of  which  compacts  we 
have  no  other  rule  to  refort  to,  but  the  law  of  nature  ;  being  the 
only  one  to  which  both  communities  are  equally  fubject :  and 
therefore  the  civil  law  c  very  juftly  obferves,  that  quod  naturdis 
ratio  inter  omnes  homines  cojiJUtuit,  vocatur  jus  gentium. 

k  Puffendcrf,  /.  7.  c.  I.  compared  with  Barbeyrac's  commentary.  c  Ff.i.i.g. 

F  2  THUS 


44  Of  the  NATURE  of  IN  TROD. 

TH  u  s  much  I  thought  it  neceflary  to.  premife  concerning  the 
law  of  nature,  the  revealed  law,  and  the  law  of  nations,  before 
I  proceeded  to  treat  more  fully  of  the  principal  fubjedt  of  this 
fedtion,  municipal  or  civil  law  ;  that  is,  the  rule  by  which  parti- 
cular diftricts,  communities,  or  nations  are  governed  ;  being  thus 
defined  by  Juftinian  d,  "jus  chile  eft  quod  quifque  fibi  populus  con- 
"JUtuit."  I  call  it  municipal  law,  in  compliance  with  common 
fpeech  ;  for,  though  ftridtly  that  expreffion  denotes  the  particular 
cuftoms  of  one  fingle  municiphim  or  free  town,  yet  it  may  with 
fufficient  propriety  be  applied  to  any  one  ftate  or  nation,  which 
is  governed  by  the  fame  laws  and  cuftoms, 

MUNICIPAL  law,  thus  underftood,  is  properly  defined  to 
be  "  a  rule  of  civil  conduct  prefcribed  by  the  fupreme  power  in 
"  a  ftate,  commanding  what  is  right  and  prohibiting  what  is 
"  wrong."  Let  us  endeavour  to  explain  it's  feveral  properties,,  as 
they  arife  out  of  this  definition. 

AND,  firft,  it  is  a  rule ;  not  a  tranfient  fudden  order  from  a 
fuperior  to  or  concerning  a  particular  perfon ;  but  fomething  per- 
manent, uniform,  and  univerfal.  Therefore  a  particular  act  of 
the  legislature  to  confifcate  the  goods  of  Titius,  or  to  attaint  him 
of  high  treafon,  does  not  enter  into  the  idea  of  a  mufticipal  law  : 
for  the  operation  of  this  act  is  fpent  upon  Titius  only,  and  has 
no  relation  to  the  community  in  general ;  it  is  rather  a  fentence 
than  a  law.  But  an  aft  to  declare  that  the  crime  of  which  Titius 
is  accufed  mail  be  deemed  high  treafon ;  this  has  permanency,, 
uniformity,  and  univerfality,  and  therefore  is  properly  a  rule. 
It  is  alfo  called  a  rule,  to  diftinguifh  it  from  advice  or  counfel, 
which  we  are  at  liberty  to  follow  or  not,  as  we  fee  proper;  and 
to  judge  upon  the  reafonablenefs  or  unreafonablenefs  of  the  thing 
advifed.  Whereas  our  obedience  to  the  law  depends  not  upon 
our  approbation,  but  upon  the  maker's  'will.  Counfel  is  only  mat- 
ter of  perfuafion,  law  is  matter  of  injunction ;  counfel  acts  only 
upon  the  willing,  law  upon  the  unwilling  alfo. 

*//»/?.  1.2.  i.  IT 


§.2.  LAWS    in   general.  45 

.- 

IT  is  alfo  called  a  rule,  to  diftinguifh  it  from  a  compatt  or 
agreement ;  for  a  compact  is  a  promife  proceeding  from  us,  lav/ 
is  a  command  directed  A?  us.  The  language  of  a  compact  is,  "  I 
"  will,  or  will  not,  do  this ;"  that  of  a  law  is,  "  thou  malt,  or 
"  malt  not,  do  it."  It  is  true  there  is  an  obligation  which  a 
compact  carries  with  it,  equal  in  point  of  confcience  to  that  of  a 
law;  but  then  the  original  of  the  obligation  is  different.  In  com- 
pacts, we  ourfelves  determine  and  promife  what  mall  be  done, 
before  we  are  obliged  to  do  it ;  in  laws,  we  are  obliged  to  act, 
without  ourfelves  determining  or  promifing  any  thing  at  all. 
Upon  thefe  accounts  law  is  denned  to  be  "  a  rule." 

MUNICIPAL  law  is  alfo  "a  rule  of  civil  conduSl."  This  dif- 
tinguimes  municipal  law  from  the  natural,  or  revealed ;  the  for- 
mer of  which  is  the  rule  of  moral  conduct,  and  the  latter  not 
only  the  rule  of  moral  conduct,  but  alfo  the  rule  of  faith.  Thefe 
regard  man  as  a  creature,  and  point  out  his  duty  to  God,  to  him- 
felf,  and  to  his  neighbour,  coniidered  in  the  light  of  an  indivi- 
dual. But  municipal  or  civil  law  regards  him  alfo  as  a  citizen, 
and  bound  to  other  duties  towards  his  neighbour,  than  thofe  of 
mere  nature  and  religion  :  duties,  which  he  has  engaged  in  by 
enjoying  the  benefits  of  the  common  union ;  and  which  amount 
to  no  more,  than  that  he  do  contribute,  on  his  part,  to  the  fub- 
fiflence  and  peace  of  the  fociety. 

I  T  is  likewife  "  a  rule  prefcribed"  Becaufe  a  bare  refolution> 
confined  in  the  breaft  of  the  leginator,  without  manifefting  itfelf 
by  fome  external  fign,  can  never  be  properly  a  law.  It  is  requi- 
fite  that  this  refolution  be  notified  to  the  people  who  are  to  obey 
it.  But  the  manner  in  which  this  notification  is  to  be  made,  is 
matter  of  very  great  indifference.  It  may  be.  notified  by  univerfal 
tradition  and  long  practice,  which  fuppofes  a  previous  publica- 
tion, and  is  the  cafe  of  the  common  law  of  England.  It  may  be 
notified,  viva  voce,  by  officers  appointed  for  that  purpofe,  as  is 
done  with  regard  to  proclamations,  and  fuch  acts  of  parliament 

as 


46  Of  the  NATURE  of  INTROD. 

as  are  appointed  to  be  publicly  read  in  churches  and  other  aSTem- 
blies.  It  may  laltly  be  notified  by  writing,  printing,  or  the  like; 
which  is  the  general  courfe  taken  with  all  our  acts  of  parliament. 
Yet,  whatever  way  is  made  ufe  of,  it  is  incumbent  on  the  pro- 
mulgators  to  do  it  in  the  moft  public  and  perSpicuous  manner ; 
not  like  Caligula,  who  (according  to  Dio  Caffius)  wrote  his  laws 
in  a  very  fmall  character,  and  hung  them  up  upon  high  pillars, 
the  more  effectually  to  enfnare  the  people.  There  is  Still  a  more 
unreafonable  method  than  this,  which  is  called  making  of  laws 
ex  poft  fatto  ;  when  after  an  action  (indifferent  in  itfelf )  is  com- 
mitted, the  legiflator  then  for  the  firSt  time  declares  it  to  have 
been  a  crime,  and  inflicts  a  puniShment  upon  the  perfon  who  has 
committed  it  ;  here  it  is  impoiTible  that  the  party  could  forefee 
that  an  action,  innocent  when  it  was  done,  fhould  be  afterwards 
converted  to  guilt  by  a  fubfequent  law  ;  he  had  therefore  no 
caufe  to  abstain  from  it  ;  and  all  puniShment  for  not  abstaining 
muff,  of  confequence  be  cruel  and  unjuSt  e.  All  laws  fhould  be 
therefore  made  to  commence  in  futuro,  and  be  notified  before 
their  commencement;  which  is  implied  in  the  term  "preferred." 
But  when  this  rule  is  in  the  ufual  manner  notified,  or  prefcribed, 
it  is  then  the  Subject's  bufinefs  to  be  thoroughly  acquainted  there- 
with ;  for  if  ignorance,  of  what  he  might  know,  were  admitted 
as  a  legitimate  excufe,  the  laws  would  be  of  no  effect,  but  might 
always  be  eluded  with  impunity. 

BUT  farther:  municipal  law  is  "a  rule  of  civil  conduct  pre- 
«'  fcribed  by  the  fupreme  power  in  ajlate."  For  legislature,  as  was 
before  obferved,  is  the  greateSt  act  of  fuperiority  that  can  be  ex- 
ercifed  by  one  being  over  another.  Wherefore  it  is  requisite  to 
the  very  eSfence  of  a  law,  that  it  be  made  by  the  fupreme  power. 
Sovereignty  and  legislature  are  indeed  convertible  terms ;  one 
cannot  fubfiSt  without  the  other. 

0  Such  laws  among;  the  Romans  were  de-  "  vat  is  kominibus  irrogari  ;  id  enim  eft  pri-vi- 

nominated  privilegia,    or  private  laws,  of  "legiuax.  Ntaioioiqiuantidit,iuhileftcntddius, 

which  Cicero  de  leg.  3-19-  and  in  his  ora-  "  nibi! pernicicjtus,  nikil  quod  minus  bate  ciiii- 

tion  prodomo,  17.  thus  fpeaks  ;   "  Vet  ant  Ifges  "  tas  ferre  poffit" 

"  facratae,  vetant  duedccint  tabulae,  leges  pri-  THIS 


§.2.  LAWS   m  general.  47 

THIS  will  naturally  lead  us  into  a  ihort  enquiry  concerning 
the  nature  of  fociety  and  civil  government;  and  the  natural,  in- 
herent right  that  belongs  to  the  fovereignty  of  a  ftate,  wherever 
that  fovereignty  be  lodged,  of  making  and  enforcing  laws. 

THE  only  true  and  natural  foundations  of   fociety  are  the 
wants  and  the  fears  of  individuals.     Not  that  we  can  believe, 
with  fome  theoretical  writers,   that  there  ever  was  a  time  when 
there  was  no  fuch  thing  as  fociety ;  and  that,  from  the  impulfe 
of  reafon,  and  through  a  fenfe  of  their  wants  and  weakneffes, 
individuals  met  together  in  a  large  plain,  entered  into  an  original 
contract,  and  chofe  the  talleft  man  prefent  to  be  their  governor. 
This  notion,  of  an  actually  exifting  unconnected  ftate  of  nature, 
is  too  wild  to  be  ferioufly  admitted;  and  belides  it  is  plainly  con- 
tradictory to  the  revealed  accounts  of  the  primitive  origin  of  man- 
kind, and  their  prefervation  two  thoufand  years  afterwards  ;   both-, 
which  were  effected  by  the  means  of  fmgle  families.  Thefe  formed 
the  firft  fociety,  among  themfelves  ;    which  every  day  extended 
it's  limits,  and  when  it  grew  too  large  to  fubiift  with  convenience 
in  that  paftoral  ftate,  wherein  the  patriarchs  appear  to  have  lived, 
it  neceflarily  fubdivided  iti'elf  by  various  migrations  into  more. 
Afterwards,  as  agriculture  increaied,  which  employs  and  can  main- 
tain a  much  greater  number  of  hands,  migrations  became  lefs 
frequent ;   and  various  tribes,  which  had  formerly  feparated,-  re- 
united again  ;  fometimes  by  compulsion  and  conqueft,  fometimes 
by  accident,  and  fometimes  perhaps  by  compact.    But  though 
fociety  had  not  it's  formal  beginning  from  any  convention  of  in- 
dividuals, actuated  by  their  wants  "and  their  fears  ;  yet  it  is  the 
fenfe  of  their  weaknefs  and  imperfection  that  keeps  mankind  to- 
gether ;   that  demonstrates  the  necefiity  of  this  union ;  and  that 
therefore  is  the  folid  and  natural  foundation,  as  well  as  the  ce- 
ment, of  fociety.     And  this  is  what  we  mean  by  the  original 
contrail  of  fociety;  which,  though  perhaps  in  no  inftance  it  has 
ever  been  formally  expreifed  at  the  firft  inititution  of  a  ftate, 
yet  in  nature  and  reafon  muft  always  be  underftood  and  implied, 

in 


Of  the  NATURE  of  I  NT  ROD. 

in  the  very  adl  of  aflbciating  together  :  namely,  that  the  whole 
Should  protect  all  it's  parts,  and  that  every  part  {hould  pay  obe- 
dience to  the  will  of  the  whole  ;  or,  in  other  words,  that  the 
community  fhould  guard  the  rights  of  each  individual  member, 
and  that  (in  return  for  this  protection)  each  individual  mould 
fubmit  to  the  laws  of  the  community;  without  which  fubmifTion 
of  all  it  was  impoffible  that  protection  could  be  certainly  extend- 
ed to  any. 

FOR  when  fociety  is  once  formed,  government  refults  of 
courfe,  as  necefTary  to  preferve  and  to  keep  that  fociety  in  order. 
Unlefs  fome  fuperior  were  constituted,  whofe  commands  and 
decilions  all  the  members  are  bound  to  obey,  they  would  flill  re- 
main as  in  a  flate  of  nature,  without  .any  judge  upon  earth  to 
define  their  feveral  rights,  and  redrefs  their  feveral  wrongs.  But, 
as  all  the  members  of  fociety  are  naturally  equal,  it  may  be  afked, 
in  whofe  hands  are  the  reins  of  government  to  be  entrufled  ? 
To  this  the  general  anfwer  is  eafy  j  but  the  application  of  it  to 
particular  cafes  has  occafioned  one  half  of  thofe  mifchiefs  which 
are  apt  to  proceed  from  mifguided  political  zeal.  In  general,  all 
mankind  will  agree  that  government  mould  be  repofed  in  fuch 
perfons,  in  whom  thofe  qualities  are  moil  likely  to  be  found,  the 
perfection  of  which  are  among  the  attributes  of  him  who  is  em- 
phatically fliled  the  fupreme  being  ;  the  three  grand  requifites, 
I  mean,  of  wifdom,  of  goodnefs,  and  of  power :  wifdom,  to 
difcern  the  real  interefl  of  the  community ;  goodnefs,  to  endea- 
vour always  to  purfue  that  real  interefl ;  and  flrength,  or  power, 
to  carry  this  knowlege  and  intention  into  adtion.  Thefe  are  the 
natural  foundations  of  fovereignty,  and  thefe  are  the  requifites 
that  ought  to  be  found  in  every  well  conflituted  frame  of  govern- 
ment. 

How  the  feveral  forms  of  government  we  now  fee  in  the 
world  at  firfl  actually  began,  is  matter  of  great  uncertainty,  and 
has  occafioned  infinite  difputes.  It  is  not  my  bufinefs  or  inten- 
tion to  enter  into  any  of  them.  However  they  began,  or  by 

what 


§.2.  L  A  w  s    in    general.  49 

what  right  foever  they  fubfift,  there  is  and  muft  be  in  all  of  them 
a  fupreme,  irrefiftible,  abfolute,  uncontrolled  authority,  in  which 
the  jurafummi  imperil,  or  the  rights  of  fovereignty,  refide.  And 
this  authority  is  placed  in  thofe  hands,  wherein  (according  to  the 
opinion  of  the  founders  of  fuch  refpective  ftates,  either  exprefTly 
given,  or  collected  from  their  tacit  approbation)  the  qualities  re- 
quilite  for  fupremacy,  wifdom,  goodnefs,  and  power,  are  the 
moft  likely  to  be  found. 

TH  E  political  writers  of  antiquity  will  not  allow  more  than 
three  regular  forms  of  government ;  the  firft,  when  the  fovereign 
power  is  lodged  in  an  aggregate  aflembly  confifting  of  all  the 
members  of  a  community,  which  is  called  a  democracy ;  the 
fecond,  when  it  is  lodged  in  a  council,  compofed  of  felect  mem- 
bers, and  then  it  is  ftiled  an  ariftocracy ;  the  laft,  when  it  is  en- 
trufted  in  the  hands  of  a  tingle  perfon,  and  then  it  takes  the 
name  of  a  monarchy.  All  other  fpecies  of  government,  they  fay, 
are  either  corruptions  of,  or  reducible  to,  thefe  three. 

B  Y  the  fovereign  power,  as  was  before  obferved,  is  meant  the 
making  of  laws ;  for  wherever  that  power  refides,  all  others  muft 
conform  to,  and  be  directed  by  it,  whatever  appearance  the  out- 
ward form  and  administration  of  the  government  may  put  on. 
For  it  is  at  any  time  in  the  option  of  the  legiflature  to  alter  that 
form  and  administration  by  a  new  edict  or  rule,  and  to  put  the 
execution  of  the  laws  into  whatever  hands  it  pleafes  :  and  all  the 
other  powers  of  the  ftale  muft  obey  the  legiflative  power  in  the 
execution  of  their  feveral  functions,  or  elfe  the  conftitution  is  at 
an  end. 

IN  a  democracy,  where  the  right  of  making  laws  refides  in 
the  people  at  large,  public  virtue,  or  goodnefs  of  intention,  is 
more  likely  to  be  found,  than  either  of  the  other  qualities  of  go- 
vernment. Popular  aflemblies  are  frequently  foolifh  in  their  con- 
trivance, and  weak  in  their  execution  ;  but  generally  mean  to  do 
the  thing  that  is  right  and  juft,  and  have  always  a  degree  of  pa- 

G  triotifm 


50  Of  the  NATURE  tf/*  IN  TROD. 

triotifm  or  public  fpirit.  In  ariftocracies  there  is  more  wifdom  to 
be  found,  than  in  the  other  frames  of  government ;  being  com- 
pofed,  or  intended  to  be  compofed,  of  the  moft  experienced 
citizens ;  but  there  is  lefs  honefty  than  in  a  republic,  and  lefs 
ftrength  than  in  a  monarchy.  A  monarchy  is  indeed  the  moft 
powerful  of  any,  all  the  finews  of  government  being  knit  to- 
gether, and  united  in  the  hand  of  the  prince ;  but  then  there  is 
imminent  danger  of  his  employing  that  ftrength  to  improvident 
or  oppreffive  purpofes. 

THUS  thefe  three  fpecies  of  government  have,  all  of  them, 
their  feveral  perfections  and  imperfections.  Democracies  are 
ufually  the  beft  calculated  to  direct  the  end  of  a  law ;  ariftocra- 
cies to  invent  the  means  by  which  that  end  mail  be  obtained ; 
and  monarchies  to  carry  thofe  means  into  execution.  And  the 
antients,  as  was  obferved,  had  in  general  no  idea  of  any  other 
permanent  form  of  government  but  thefe  three  :  for  though 
Cicero  f  declares  himlelf  of  opinion,  "  eJJ'e  optime  conftitutam  rem- 
"  public  am  t  quae  ex  tribus  generibus  illis,  regali,  Optimo,  et  popular} , 
"Jit  modice  confuja ;"  yet  Tacitus  treats  this  notion  of  a  mixed 
government,  formed  out  of  them  all,  and  partaking  of  the  ad- 
vantages of  each,  as  a  vifionary  whim,  and  one  that,  if  effected, 
could  never  be  lafting  or  fecure E. 

BUT,  happily  for  us  of  this  ifland,  the  Britim  conftitutiori 
has  long  remained,  and  I  truft  will  long  continue,  a  (landing  ex- 
ception to  the  truth  of  this  obfervation.  For,  as  with  us  the 
executive  power  of  the  laws  is  lodged  in  a  fingle  perfon,  they 
have  all  the  advantages  of  ftrength  and  difpatch,  that  are  to  be 
found  in  the  moft  abfolute  monarchy ;  and,  as  the  legiflature  of 
the  kingdom  is  entrufted  to  three  diftinct  powers,  entirely  inde- 
pendent of  each  other  j  firft,  the  king ;  fecondly,  the  lords  fpi- 
ritual  and  temporal,  which  is  an  ariftocratical  aflembly  of  perfons 

1  In  his  fragments  de  rep.  1.  2.  "  et  conftituta  reipublicae  forma lauttari  facilixi 

*   "  Cunfias  nat tones  ft  urbes  populus,    ant     "  qiiam  e-venirt,  <vel,  ji  evenit,  kaud  diuturna 
"  frimom,  ant  finguli  regunt :   delcfla  tx  his     "  fffe  poteft,"    Ann,  I.  4. 

felected 


§.2.  L  A  w  s    in    general.  51 

feleded  for  their  piety,  their  birth,  their  wifdom,  their  valour, 
or  their  property ;  and,  thirdly,  the  houfe  of  commons,  freely 
chofen  by  the  people  from  among  themfelves,  whicli  makes  it  a 
kind  of  democracy ;  as  this  aggregate  body,  actuated  by  diffe- 
rent fprings,  and  attentive  to  different  interefts,  compofes  the 
Britifh  parliament,  and  has  the  fupreme  difpofal  of  every  thing  j 
there  can  no  inconvenience  be  attempted  by  either  of  the  three 
branches,  but  will  be  withftood  by  one  of  the  other  two ;  each 
branch  being  armed  with  a  negative  power,  fufficient  to  repel 
any  innovation  which  it  mall  think  inexpedient  or  dangerous, 

HERE  then  is  lodged  the  fovereignty  of  the  Britifh  conftitu- 
tion  ;  and  lodged  as  beneficially  as  is  poffible  for  fociety.  For  in 
no  other  fhape  could  we  be  fo  certain  of  finding  the  three  great 
qualities  of  government  fo  well  and  fo  happily  united.  If  the 
fupreme  power  were  lodged  in  any  one  of  the  three  branches  fe- 
parately,  we  muft  be  expofed  to  the  inconveniences  of  either 
abfolute  monarchy,  ariftocracy,  or  democracy ;  and  fo  want  two 
of  the  three  principal  ingredients  of  good  polity,  either  virtue, 
wifdom,  or  power.  If  it  were  lodged  in  any  two  of  the  branches  j 
for  instance,  in  the  king  and  houfe  of  lords,  our  laws  might  be 
providently  made,  and  well  executed,  but  they  might  not  always 
have  the  good  of  the  people  in  view  :  if  lodged  in  the  king  and 
commons,  we  mould  want  that  circumfpeclion  and  mediatory 
caution,  which  the  wifdom  of  the  peers  is  to  afford  :  if  the  fu- 
preme rights  of  legiflature  were  lodged  in  the  two  houfes  only, 
and  the  king  had  no  negative  upon  their  proceedings,  they  might 
be  tempted  to  encroach  upon  the  royal  prerogative,  or  perhaps  to 
abolifh  the  kingly  office,  and  thereby  weaken  (if  not  totally  de- 
ilroy)  the  flrength  of  the  executive  power.  But  the  conftitutional 
government  of  this  ifland  is  fo  admirably  tempered  and  com- 
pounded, that  nothing  can  endanger  or  hurt  it,  but  deftroying 
the  equilibrium  of  power  between  one  branch  of  the  legiflature 
and  the  reft.  For  if  ever  it  fhould  happen  that  the  independence 
of  any  one  of  the  three  mould  be  loft,  or  that  it  mould  become 
fubfervient  to  the  views  of  either  of  the  other  two,  there  would 

G  2  foon 


52  Of  the  NATURE  of  IN  TROD. 

foon  be  an  end  of  our  conftitution.  The  legillature  would  be 
changed  from  that,  which  was  originally  fet  up  by  the  general 
confent  and  fundamental  adl  of  the  fociety ;  and  fuch  a  change, 
however  effected,  is  according  to  Mr  Locke  h  (who  perhaps  car- 
ries his  theory  too  far)  at  once  an  entire  diffolution  of  the  bands 
of  government  -,  and  the  people  would  be  reduced  to  a  ftate  of 
anarchy,  with  liberty  to  conftitute  to  themfelves  a  new  legislative 
power. 

HAV  i  N  G  thus  curforily  confidered  the  three  ufual  fpecies  of 
government,  and  our  own  fingular  conflitution,  felefted  and  com- 
pounded from  them  all,  I  proceed  to  obferve,  that,  as  the  power 
of  making  laws  conftitutes  the  fupreme  authority,  fo  wherever 
the  fupreme  authority  in  any  ftate  refides,  it  is  the  right  of  that 
authority  to  make  laws ;  that  is,  in  the  words  of  our  definition, 
fo  prefcribe  the  rule  of  civil  attion.  And  this  may  be  difcovered 
from  the  very  end  and  inftitution  of  civil  ftates.  For  a  ftate  is  a 
collective  body,  compofed  of  a  multitude  of  individuals,  united 
for  their  fafety  and  convenience,  and  intending  to  acl:  together 
as  one  man.  If  it  therefore  is  to  adl  as  one  man,  it  ought  to  ad~l 
by  one  uniform  will.  But,  inafmuch  as  political  communities 
are  made  up  of  many  natural  perfons,  each  of  whom  has  his 
particular  will  and  inclination,  thefe  feveral  wills  cannot  by  any 
natural  union  be  joined  together,  or  tempered  and  difpofed  into 
a  lafting  harmony,  fo  as  to  conftitute  and  produce  that  one  uni- 
form will  of  the  whole.  It  can  therefore  be  no  otherwife  pro- 
duced than  by  a  political  union ;  by  the  confent  of  all  perfons  to 
fubmit  their  own  private  wills  to  the  will  of  one  man,  or  of  one 
or  more  affemblies  of  men,  to  whom  the  fupreme  authority  is 
entrufted  :  and  this  will  of  that  one  man,  or  afTemblage  of  men, 
is  in  different  ftates,  according  to  their  different  conftitutions, 
underftood  to  be  law. 

THUS  far  as  to  the  right  of  the  fupreme  power  to  make 
laws ;  but  farther,  it  is  it's  duty  likewife.  For  fmce  the  refpec- 

k  On  government,  part.  2.  §  212. 

tive 


§.2.  L  A  w  s    in    general.  53 

tive  members  are  bound  to  conform  themfelves  to  the  will  of 
the  ftate,  it  is  expedient  that  they  receive  directions  from  the 
ftate  declaratory  of  that  it's  will.  But  fince  it  is  impoflible,  in 
fo  great  a  multitude,  to  give  injunctions  to  every  particular  man, 
relative  to  each  particular  action,  therefore  the  ftate  eftablifhes 
general  rules,  for  the  perpetual  information  and  direction  of  all 
perfons  in  all  points,  whether  of  pofitive  or  negative  duty.  And 
this,  in  order  that  every  man  may  know  what  to  look  upon  as 
his  own,  what  as  another's ;  what  abfolute  and  what  relative  du- 
ties are  required  at  his  hands ;  what  is  to  be  efteemed  honeft, 
difhoneft,  or  indifferent ;  what  degree  every  man  retains  of  his 
natural  liberty ;  what  he  has  given  up  as  the  price  of  the  bene- 
fits of  fociety  j  and  after  what  manner  each  perfon  is  to  mode- 
rate the  ufe  and  exercife  of  thofe  rights  which  the  ftate  afligns 
him,  in  order  to  promote  and  fecure  the  public  tranquillity. 

FROM  what  has  been  advanced,  the  truth  of  the  former 
branch  of  our  definition,  is  (I  truft)  fufficiently  evident ;  that 
*'  municipal  law  is  a  rule  of  civil  conduSl  prefcribed  by  the  fupreme 
"power  in  a  Jlate"  I  proceed  now  to  the  latter  branch  of  it; 
that  it  is  a  rule  fo  prefcribed,  "  commanding  ivhat  is  right,  and 
"prohibiting  what  is  ivrong." 

N  o  w  in  order  to  do  this  completely,  it  is  firft  of  all  necefTary 
that  the  boundaries  of  right  and  wrong  be  eftabliihed  and  afcer- 
tained  by  law.  And  when  this  is  once  done,  it  will  follow  of 
coude  that  it  is  likewife  the  buiinefs  of  the  law,  confidered  as  a 
rule  of  civil  conduct,  to  enforce  thefe  rights  and  to  reftrain  or 
redrefs  thefe  wrongs.  It  remains  therefore  only  to  confider  in 
what  manner  the  law  is  faid  to  afcertain  the  boundaries  of  right 
and  wrong ;  and  the  methods  which,  it  takes  to  command  the 
one  and  prohibit  the  other. 

FOR  this  purpofe  every  law  may  be  faid  to  confift  of  feveral 
parts  :  one,  declaratory ;  whereby  the  rights  to  be  obferved,  and 
the  wrongs  to  be  efchewed,  are  clearly  defined  and  laid  down: 

anotherj 


54  Of  the  NATURE  of  INTRO D. 

another, •  directory,  whereby  the  fubject  is  instructed  and  enjoined 
to  obferve  thofe  rights,  and  to  abflain  from  the  commiffion  of 
thofe  wrongs :  a  third,  remedial;  whereby  a  method  is  pointed  out 
to  recover  a  man's  private  rights,  or  redrefs  his  private  wrongs : 
to  which  may  be  added  a  fourth,  ufually  termed  t\\zfancJion,  or 
vindicatory  branch  of  the  law ;  whereby  it  is  Signified  what  evil 
or  penalty  mall  be  incurred  by  fuch  as  commit  any  public  wrongs., 
and  tranfgrefs  or  neglect  their  duty. 

WITH  regard  to  the  firfr.  of  thefe,  the  declaratory  part  of  the 
municipal  law,  this  depends  not  fo  much  upon  the  law  of  reve- 
lation or  of  nature,  as  upon  the  wifdom  and  will  of  the  legifla- 
tor.  This  doctrine,  which  before  was  flightly  touched,  deferves 
a  more  particular  explication.  Thofe  rights  then  which  God  and 
nature  have  eftablifhed,  and  are  therefore  called  natural  rights, 
fuch  as  are  life  and  liberty,  need  not  the  aid  of  human  laws  to 
be  more  effectually  inverted  in  every  man  than  they  are ;  neither 
do  they  receive  any  additional  Strength  when  declared  by  the  mu- 
nicipal laws  to  be  inviolable.  On  the  contrary,  no  human  legif- 
lature  has  power  to  abridge  or  deflroy  them,  unlefs  the  owner 
fhall  himfelf  commit  fome  act  that  amounts  to  a  forfeiture.  Nei- 
ther do  divine  or  natural  duties  (fuch  as,  for  inStance,  the  worShip 
of  God,  the  maintenance  of  children,  and  the  like)  receive  any 
flronger  fanction  from  being  alfo  declared  to  be  duties  by  the  law 
of  the  land.  The  cafe  is  the  fame  as  to  crimes  and  mifdemefnors, 
that  are  forbidden  by  the  fuperior  laws,  and  therefore  Stiled  mala 
infe,  fuch  as  murder,  theft,  and  perjury  j  which  contract  no  ad- 
ditional turpitude  from  being  declared  unlawful  by  the  inferior 
legiflature.  For  that  legiflature  in  all  thefe  cafes  acts  only,  as 
was  before  obferved,  in  fubordination  to  the  great  lawgiver,  tranf- 
cribing  and  publishing  his  precepts.  So  that,  upon  the  whole, 
the  declaratory  part  of  the  municipal  law  has  no  force  or  opera- 
tion at  all,  with  regard  to  actions  that  are  naturally  and  intrinfi- 
cally  right  or  wrong. 

BUT, 


§.2.  L  A  w  s    in    general.  55 

BUT,  with  regard  to  things  in  themfelves  indifferent,  the  cafe 
is  entirely  altered.  Thefe  become  either  right  or  wrong,  juft  or 
unjuft,  duties  or  mifdemefnors,  according  as  the  municipal  legif- 
lator  fees  proper,  for  promoting  the  welfare  of  the  fociety,  and 
more  effectually  carrying  on  the  purpofes  of  civil  life.  Thus  our 
own  common  law  has  declared,  that  the  goods  of  the  wife  do 
inftantly  upon  marriage  become  the  property  and  right  of  the 
hufband ;  and  our  ftatute  law  has  declared  all  monopolies  a  pub- 
lic offence  :  yet  that  right,  and  this  offence,  have  no  foundation, 
in  nature  ;  but  are  merely  created  by  the  law,  for  the  purpofes  of 
civil  fociety.  And  fometimes,  where  the  thing  itfelf  has  it's 
rife  from  the  law  of  nature,  the  particular  circumflances  and 
mode  of  doing  it  become  right  or  wrong,  as  the  laws  of  the  land 
fhall  direct.  Thus,  for  inftance,  in  civil  duties  ;  obedience  to  fu- 
periors  is  the  doctrine  of  revealed  as  well  as  natural  religion  : 
but  who  thofe  fuperiors  fhall  be,  and  in  what  circumftances,  or 
to  what  degrees  they  fhall  be  obeyed,  is  the  province  of  human, 
laws  to  determine.  And  fo,  as  to  injuries  or  crimes,  it  mufl  be 
left  to  our  own  legiflature  to  decide,  in  what  cafes  the  feifing 
another's  cattle  fhall  amount  to  the  crime  of  robbery ;  and  where 
it  fhall  be  a  juftifiable  action,  as  when  a  landlord  takes  them  by 
way  of  diflrefs  for  rent. 

THUS  much  for  the  declaratory  part  of  the  municipal  law  : 
and  the  directory  ftands  much  upon  the  fame  footing ;  for  this 
virtually  includes  the  former,  the  declaration  being  ufually  col- 
lected from  the  direction.  The  law  that  fays,  "  thou  fhalt  not 
"  fteal,"  implies  a  declaration  that  flealing  is  a  crime.  And  we 
have  feen  *  that,  in  things  naturally  indifferent,  the  very  effence  of 
right  and  wrong  depends  upon  the  direction  of  the  laws  to  do 
or  to  omit  them. 

T  H-  E  remedial  part  of  a  law  is  fo  neceffary  a  confequence  of 
the  former  two,  that  laws  muft  be  very  vague  and  imperfect 

'  See  pag.  43. 

without 


56  •  Of  the  NATURE  of  INTRO D. 

without  it.  For  in  vain  would  rights  be  declared,  in  vain  directed 
to  be  obferved,  if  there  were  no  method  of  recovering  and  aflert- 
ing  thofe  rights,  when  wrongfully  withheld  or  invaded.  This  is 
what  we  mean  properly,  when  we  fpeak  of  the  protection  of  the 
law.  When,  for  inftance,  the  declaratory  part  of  the  law  has 
faid  "  that  the  field  or  inheritance,  which  belonged  to  Titius's 
"  father,  is  vefted  by  his  death  in  Titius ;"  and  the  directory  part 
has  "  forbidden  any  one  to  enter  on  another's  property  without 
"  the  leave  of  the  owner  j"  if  Gaius  after  this  will  prefume  to 
take  poffeflion  of  the  land,  the  remedial  part  of  the  law  will  then 
interpofe  it's  office ;  will  make  Gaius  reftore  the  pofTeffion  to 
Titius,  and  alfo  pay  him  damages  for  the  invafion. 

WITH  regard  to  the  fanSlion  of  laws,  or  the  evil  that  may 
attend  the  breach  of  public  duties ;  it  is  obferved,  that  human 
legiflators  have  for  the  moft  part  chofen  to  make  the  fanction  of 
their  laws  rather  'vindicatory  than  remuneratory,  or  to  confift  ra- 
ther in  punifhments,  than  in  actual  particular  rewards.  Becaufe, 
in  the  firft  place,  the  quiet  enjoyment  and  protection  of  all  our 
civil  rights  and  liberties,  which  are  the  fure  and  general  confe- 
quence  of  obedience  to  the  municipal  law,  are  in  themfelves  the 
beft  and  moft  valuable  of  all  rewards.  Becaufe  alfo,  were  the 
exercife  of  every  virtue  to  be  enforced  by  the  propofal  of  parti- 
cular rewards,  it  were  inipoffible  for  any  ftate  to  furnifli  ftock 
enough  for  fo  profufe  a  bounty.  And  farther,  becaufe  the  dread 
of  evil  is  a  much  more  forcible  principle  of  human  actions  than 
the  profpect'of  good '.  For  which  reafons,  though  a  prudent 
beftowing  of  rewards  is  fometimes  of  exquillte  ufe,  yet  we  find 
that  thofe  civil  laws,  which  enforce  and  enjoin  our  duty,  do 
feldom,  if  ever,  propofe  any  privilege  or  gift  to  fuch  as  obey  the 
law;  but  do  constantly  come  armed  with  a  penalty  denounced 
againft  tranfgreflbrs,  either  expreffly  defining  the  nature  and 
quantity  of  the  punifliment,  or  elfe  leaving  it  to  the  dilcretion 
of  the  judges,  and  thofe  who  are  entrufted  with  the  care  of 
putting  the  laws  in  execution. 

'  Locke,  Hum.  Und.  b.  2.  c.  21. 

OF 


§.2.  LAWS     in    'general.  57 

O  F  all  the  parts  of  a  law  the  moft  effectual  is  the  vindicatory. 
For  it  is  but  loft  labour  to  fay,  "  do  this,  or  avoid  that,"  unlefs 
we  alfo  declare,  "  this  fhall  be  the  confequence  of  your  non-com- 
"pliance."  We  muft  therefore  obferve,  that  the  main  ftrength 
and  force  of  a  law  conlifts  in  the  penalty  annexed  to  it.  Herein 
is  to  be  found  the  principal  obligation  of  human  laws. 

LEGISLATORS  and  their  laws  are  faid  to  compel  and  oblige  ; 
not  that  by  any  natural  violence  they  fo  con  drain  a  man,  as  to 
render  it  impoffible  for  him  to  adl  otherwife  than  as  they  direct, 
which  is  the  ftrict  fenfe  of  obligation  :  but  becaufe,  by  declaring 
and  exhibiting  a  penalty  again  ft  offenders,  they  bring  it  to  pafs 
that  no  man  can  eafily  choofe  to  tranfgrefs  the  law ;  fince,  by 
reafon  of  the  impending  correction,  compliance  is  in  a  high  de- 
gree preferable  to  difobedience.  And,  even  where  rewards  are 
propofed  as  well  as  punifhments  threatened,  the  obligation  of  the 
law  feems  chiefly  to  confift  in  the  penalty  :  for  rewards,  in  their 
nature,. can  only  perfuade  and  allure;  nothing  is  compulfory  but 
punifliment. 

IT  is  held,  it  is  true,  and  very  juftly,  by  the  principal  of  our 
ethical  writers,  that  human  laws  are  binding  upon  mens  con- 
fciences.  But  if  that  were  the  only,  or  moft  forcible  obligation, 
the  good  only  would  regard  the  laws,  and  the  bad  would  fet 
them  at  defiance.  And,  true  as  this  principle  is,  it  muft  ftill  be 
underftood  with  fome  reftriclion.  It  holds,  I  apprehend,  as  to 
rights;  and  that,  when  the  law  has  determined  the  field  to  belong 
to  Titius,  it  is  matter  of  confcience  no  longer  to  withhold  or  to 
invade  it.  So  alfo  in  regard  to  natural  duties,  and  fuch  offences  as 
are  mala  in  fe :  here  we  are  bound  in  confcience,  becaufe  we  are 
bound  by  fuperior  laws,  before  thofe  human  laws  were  in  being, 
to  perform  the  one  and  abftain  from  the  other.  But  in  relation 
to  thofe  laws  which  enjoin  only  pofitiiie  duties,  and  forbid  only 
fuch  things  as  are  not  mala  in  fe  but  mala  prohibita  merely,  an- 

H  nexing 


58  Of  the  NATURE  of  INTROD. 

nexing  a  penalty  to  non-compliance,  here  I  apprehend  confcience 
is  no  farther  concerned,  than  by  directing  a  fubmiffion  to  the 
penalty,  in  cafe  of  our  breach  of  thofe  laws  :  for  otherwife  the 
multitude  of  penal  laws  in  a  ftate  would  not  only  be  looked  upon 
as  an  impolitic,  but  would  allb  be  a  very  wicked  thing  ;  if  every 
fuch  law  were  a  fnare  for  the  confcience  of  the  fubjecT:.  But  in 
thefe  cafes  the  alternative  is  offered  to  every  man;  "  either  ab- 
"  flain  from  this,  or  fubmit  to  fuch  a  penalty  •"  and  his  con- 
fcience will  be  clear,  whichever  fide  of  the  alternative  he  thinks 
proper  to  embrace.  Thus,  by  the  ftatutes  for  preferving  the 
game,  a  penalty  is  denounced  againft  every  unqualified  perfon 
that  kills  a  hare.  Now  this  prohibitory  law  does  not  make  the 
tranfgreflion  a  moral  offence  :  the  only  obligation  in  confcience 
is  to  fubmit  to  the  penalty  if  levied. 

I  H  A  v  E  now  gone  through  the  definition  laid  down  of  a  mu- 
nicipal law;  and  have  {hewn  that  it  is  "  a  rule  —  of  civil  con- 
"  duel:  —  prefcribed —  by  the  fupreme  power  in  a  ftate  —  com- 
"  manding  what  is  right,  and  prohibiting  what  is  wrong :"  in 
the  explication  of  which  I  have  endeavoured  to  interweave  a  few 
ufeful  principles,  concerning  the  nature  of  civil  government,  and 
the  obligation  of  human  laws.  Before  I  conclude  this  fection,  it 
may  not  be  amifs  to  add  a  few  obfervations  concerning  the  inter- 
pretation of  laws. 

W  HEN  any  doubt  arofe  upon  the  conftruction  of  the  Roman 
laws,  the  ufage  was  to  ftate  the  cafe  to  the  emperor  in  writing, 
and  take  his  opinion  upon  it.  This  was  certainly  a  bad  method 
of  interpretation.  To  interrogate  the  legiflature  to  decide  parti- 
cular difputes,  is  not  only  endlefs,  but  affords  great  room  for 
partiality  and  oppreflion.  The  anfwers  of  the  emperor  were  called 
his  refcripts,  and  thefe  had  in  fucceeding  cafes  the  force  of  per- 
petual laws  ;  though  they  ought  to  be  carefully  diftinguifhed,  by 
every  rational  civilian,  from  thofe  general  conftitutions,  which 
had  only  the  nature  of  things  for  their  guide.  The  emperor  Ma- 
crinus,  as  his  hiftorian  Capitolinus  informs  us,  had  once  refolved 

to 


§.2.  LAWS   in  general.  59 

to  abolifli  thefe  refcripts,  and  retain  only  the  general  edicts ;  he 
could  not  bear  that  the  hafty  and  crude  anfwers  of  fuch  princes 
as  Commodus  and  Caracalla  fhould  be  reverenced  as  laws.  But 
Juftinian  thought  otherwifek,  and  he  has  preferved  them  all.  In 
like  manner  the  canon  laws,  or  decretal  epiftles  of  the  popes, 
are  all  of  them  refcripts  in  the  ftrifteft  fenfe.  Contrary  to  all 
true  forms  of  reafoning,  they  argue  from  particulars  to  generals. 

TH  E  faireft  and  moft  rational  method  to  interpret  the  will  of 
the  legiflator,  is  by  exploring  his  intentions  at  the  time  when  the 
law  was  made,  by  Jlgns  the  moft  natural  and  probable.  And 
thefe  figns  are  either  the  words,  the  context,  the  fubject  matter, 
the  effects  and  confequence,  or  the  fpirit  and  reafon  of  the  law. 
Let  us  take  a  mort  view  of  them  all. 

i.  WOR  D  s  are  generally  to  be  underflood  in  their  ufual  and 
moft  known  fignification  ;  not  fo  much  regarding  the  propriety  of 
grammar,  as  their  general  arid  popular  ufe.  Thus  the  law  men- 
tioned by  PufFendorf ',  which  forbad  a  layman  to  lay  hands  on 
a  prieft,  was  adjudged  to  extend  to  him,  who  had  hurt  a  prieft 
with  a  weapon.  Again ;  terms  of  art,  or  technical  terms,  muft 
be  taken  according  to  the  acceptation  of  the  learned  in  each  art, 
trade,  and  fcience.  So  in  the  act  of  fettlement,  where  the  crown 
of  England  is  limited  "  to  the  princefs  Sophia,  and  the  heirs 
"of  her  body,  being  proteftants,"  it  becomes  neceflary  to  call 
in  the  affiftance  of  lawyers,  to  afcertain  the  precife  idea  of  the 
words  "  heirs  of  her  body  ;"  which  in  a  legal  fenfe  comprize  only 
certain  of  her  lineal  defcendants.  Laflly,  where  words  are  clearly 
repugnant  in  two  laws,  the  latter  law  takes  place  of  the  elder  : 
leges  pojleriores  priores  contrarias  abrogant  is  a  maxim  of  univerfal 
law,  as  well  as  of  our  own  conftitutions.  And  accordingly  it 
was  laid  down  by  a  law  of  the  twelve  tables  at  Rome,  quod  po~ 
pulus  poftremum  juflit,  id  jus  ratum  ejlo. 

*/»/?.  1.2.6.  '  L.ofN.  andN-s.12.  3. 

H  2  2.  IF 


60  Of  the  NATURE  of  INTRO D» 

2.  IF  words  happen  to  be  ftill  dubious,  we  may  eftablim  their 
meaning  from  the  context ;  with  which  it  may  be  of  fingular 
ufe  to  compare  a  word,  or  a  fentence,  whenever  they  are  ambi- 
guous, equivocal,  or  intricate.    Thus  the  proeme,  or  preamble, 
is  often  called  in  to  help  the  construction  of  an  aft  of  parliament. 
Of  the  fame  nature  and  ufe  is  the  comparifon  of  a  law  with  other 
laws,  that  are  made  by  the  fame  legiflator,  that  have  fome  affi- 
nity with  the  fubject,  or  that  expreffly  relate  to  the  fame  point. 
Thus,  when  the  law  of  England  declares  murder  to  be  felony 
without  benefit  of  clergy,  we  muft  refort  to  the  fame  law  of 
England  to  learn  what  the  benefit  of  clergy  is  :  and,  when  the 
common  law  cenfures  fimoniacal  contracts,  it  affords  great  light 
to  the  fubject  to  confider  what  the  canon  law  has  adjudged  to  be 
iimony. 

3.  As  to  the  fubject  matter,  words  are  always  to  be  under- 
ftood  as  having  a  regard  thereto ;  for  that  is  always  fuppofed  to 
be  in  the  eye  of  the  legiflator,  and  all  his  expreflions  directed  to 
that  end.     Thus,  when  a  law  of  our  Edward  III  forbids  all  ec- 
clefiaftical  perfons  to  purchafe  provifions  at  Rome,  it  might  feem 
to  prohibit  the  buying  of  grain  and  other  victual ;  but  when  we 
confider  that  the  ftatute  was  made  to  reprefs  the  ufurpations  of 
the  papal  fee,  and  that  the  nominations  to  benefices  by  the  pope 
were  called  provf/ions,  we  (hall  fee  that  the  reftraint  is  intended 
to  be  laid  upon  fuch  provifions  only. 

4.  As  to  the  effects  and  confequence,  the  rule  is,  where  words 
bear  either  none,  or  a  very  abfurd  fignification,  if  literally  under- 
ftood,  we  muft  a  little  deviate  from  the  received  fenfe  of  them. 
Therefore  the  Bolognian  law,  mentioned  by  Puffendorf m,  which 
enacted  "that  whoever  drew  blood  in  the  ftreets  mould  be  puniih- 
"ed  with  the  utmoft  feverity,"  was  held  after  long  debate  not  to 
extend  to  the  furgeon,  who  opened  the  vein  of  a  perfon  that  fell 
down  in  the  ftreet  with  a  fit. 

n  7.5.  c,  12.  §.s. 

5.  BUT, 


§.2.  LAWS    in    general.  61 

5.  BUT,  laftly,  the  moft  univerfal  and  effectual  way  of  dii- 
covering  the  true  meaning  of  a  law,  when  the  words  are  dubious, 
is  by  confidering  the  reafon  and  fpirit  of  it ;  or  the  caufe  which 
moved  the  legiflator  to  enacl:  it.  For  when  this  reafon  ceafes,  the 
law  itfelf  ought  likewife  to  ceafe  with  it.  An  inftance  of  this  is 
given  in  a  cafe  put  by  Cicero,  or  whoever  was  the  author  of  the 
rhetorical  treatife  infcribed  to  Herennius".  There  was  a  law,- 
that  thofe  who  in  a  florm  forfook  the  {hip  mould  forfeit  all  pro- 
perty therein  j  and  the  fhip  and  lading  mould  belong  entirely  to 
thofe  who  (laid  in  it.  In  a  dangerous  tempefl  all  the  mariners 
forfook  the  fhip,  except  only  one  fick  paffenger,  who  by  reafon 
of  his  difeafe  was  unable  to  get  out  and  efcape.  By  chance  the 
fhip  came  fafe  to  port.  The  fick  man  kept  polTefTion  and  claim- 
ed the  benefit  of  the  law.  Now  here  all  the  learned  agree,  that 
the  fick  man  is  not  within  the  reafon  of  the  law ;  for  the  reafon 
of  making  it  was,  to  give  encouragement  to  fuch  as  fliould  ven- 
ture their  lives  to  fave  the  veffel  :  but  this  is  a  merit,  which  he 
could  never  pretend  to,  who  neither  flaid  in  the  fhip  upon  that 
account,  nor  contributed  any  thing  to  it's  prefervation. 

FROM  this  method  of  interpreting  laws,  by  the  reafon  of 
them,  arifes  what  we  call  equity;  which  is  thus  defined  by  Grotius0, 
"  the  correction  of  that,  wherein  the  law  (by  reafon  of  it's  uni- 
"  verfality)  is  deficient."  For  fmce  in  laws  all  cafes  cannot  be 
forefeen  or  expreiled,  it  is  neceflary,  that  when  the  general  decrees 
of  the  law  come  to  be  applied  to  particular  cafes,  there  fhould 
be  fomewhere  a  power  veiled  of  defining  thofe  circumflances, 
which  (had  they  been  forefeen)  the  legiflator  himfelf  would  have 
expreffed.  And  thefe  are  the  cafes,  which,  according  to  Grotius, 
"  lex  non  exaSle  definit,  fed  arbitrio  bonl  viri  permlttit" 

E  QJJ  i  TY  thus  depending,  eflentially,  upon  the  particular  cir- 
cumflances of  each  individual  cafe,  there  can  be  no  cflablilhed 

n  /.  i.  c.  II.  °  He  aequitate. 

rules' 


62  Of  the  NATURE,  &c.          IN  TROD. 

rules  and  fixed  precepts  of  equity  laid  down,  without  deftroying 
it's  very  effence,  and  reducing  it  to  a  pofitive  law.  And,  on  the 
other  hand,  the  liberty  of  confidering  all  cafes  in  an  equitable 
light  muft  not  be  indulged  too  far,  left  thereby  we  deftroy  all 
law,  and  leave  the  decifion  of  every  queftion  entirely  in  the  breaft 
of  the  judge.  And  law,  without  equity,  though  hard  and  dif- 
agreeable,  is  much  more  defirable  for  the  public  good,  than  equity 
without  law;  which  would  make  every  judge  a  legiflator,  and 
introduce  moft  infinite  confufion -,  as  there  would  then  be  almoft 
as  many  different  rules  of  action  laid  down  in  our  courts,  as  there 
are  differences  of  capacity  and  fentiment  in  the  human  mind. 


63 


SECTION     THE     THIRD. 
OF     THE     LAWS     OF     ENGLAND. 


THE  municipal  law  of  England,  or  the  rule  of  civil  con- 
duel  prefcribed  to  the  inhabitants  of  this  kingdom,  may 
with  fufficient  propriety  be  divided  into  two  kinds ;  the  lex  non 
fcripta,  the  unwritten,  or  common  law ;  and  die  lex  fcripta,  the 
written,  or  flatute  law. 

THE  lex  non  fcripta,  or  unwritten  law,  includes  not  -only  ge- 
neral sujlomsy  or  the  common  law  properly  fo  called  ;    but  alfo 
the  particular  cujloms  of  certain  parts  of  the  kingdom  ;  and  like- 
wife  thofe  particular  laws,  that  are  by  cuftom  obferved  only  in. 
certain  courts  and  jurifdiclions. 

WHEN  I  call  thefe  parts  of  our  law  leges  nonfcriptae>  I  would' 
not  be  understood  as  if  all  thofe  laws  were  at  prefent  merely 
era/,  or  communicated  from  the  former  ages  to  the  prefent  folely 
byword  of  mouth.    It  is  true  indeed  that,  in  the  profound  igno- 
rance of  letters  which  formerly  overfpread  the  whole  weftern 
world,  all  laws  were  intirely  traditional,  for  this  plain  reafon,  that 
the  nations  among  which  they  prevailed  had  but  little  idea  of 
writing.  Thus  the  Britifh  as  well  as  the  Gallic  druids  committed 
all  their  laws  as  well  as  learning  to  memory  a ;    and  it  is  laid  of 
the  primitive  Saxons  here,  as  well  as  their  brethren  on  the  conti- 
nent, that  leges  fola  memona  et  uju  retinebant  b.     But,  with  us  at- 
prefent,   the  monuments  and  evidences  of  our  legal  cuiloms  are 
contained  in  the  records  of  the  feveral  courts  of  juftice,  in  books 

a  Caef.  tie  b,  G.  lib.  6.  c.  13.  b  Spelm.  G/.  362. 

of 


64-  Of    the    LAWS  I  NT  ROD. 

of  reports  and  judicial  decifions,  and  in  the  treadles  of  learned 
fages  of  the  profeflion,  preferved  and  handed  down  to  us  from 
the  times  of  higheft  antiquity.  However  I  therefore  ftile  thefe 
parts  of  our  law  leges  non  fcriptae,  becaufe  their  original  inftitu- 
tion  and  authority  are  not  fet  down  in  writing,  as  afts  of  parlia- 
ment, are,  but  they  receive  their  binding  power,  and  the  force 
of  laws,  by  long  and  immemorial  ufage,  and  by  their  univerfal 
reception  throughout  the  kingdom.  In  like  manner  as  Aulus 
Gellius  defines  the  jus  non  fcriptum  to  be  that,  which  is  "  tacit o 
"  et  illiterate  hominum  conjenfu  et  moribus  expreffum" 

OUR  antient  lawyers,  and  particularly  Fortefcue c,  infill  with 
abundance  of  warmth,  that  thefe  cuftoms  are  as  old  as  the  pri- 
mitive Britons,  and  continued  down,  through  the  feveral  muta- 
tions of  government  and  inhabitants,  to  the  prefent  time,  un- 
changed and  unadulterated.  This  may  be  the  cafe  as  to  fome  : 
but  in  general,  as  Mr  Selden  in  his  notes  obferves,  this  affertion 
muft  be  uriderftood  with  many  grains  of  allowance ;  and  ought 
only  to  fignify,  as  the  truth  feems  to  be,  that  there  never  was 
any  formal  exchange  of  one  fyftem  of  laws  for  another  :  though 
doubtlefs  by  the  intermixture  of  adventitious  nations,  the  Ro- 
mans, the  Picls,  the  Saxons,  the  Danes,  and  the  Normans,  they 
muft  have  infenfibly  introduced  and  incorporated  many  of  their 
own  cuftoms  with  thofe  that  were  before  eftabiimed  :  thereby  in 
all  probability  improving  the  texture  and  wifdom  of  the  whole, 
by  the  accumulated  wifdom  of  divers  particular  countries.  Our 
laws,  faith  lord  Bacon  d,  are  mixed  as  our  language  :  and  as  our 
language  is  fo  much  the  richer,  the  laws  are  the  more  complete. 

AND  indeed  our  antiquarians  and  firft  hiftorians  do  all  pofi- 
tively  allure  us,  that  our  body  of  laws  is  of  this  compounded 
nature.  For  they  tell  us,  that  in  the  time  of  Alfred  the  local 
cuftoms  of  the  feveral  provinces  of  the  kingdom  were  grown  fo 
various,  that  he  found  it  expedient  to  compile  his  dome-book  or 
liber  judiciaUs,  for  the  general  ufe  of  the  whole  kingdom.  This 

c  c.  17.  d  See  his  propofals  for  a  digeft. 

book 


§.  3.  of      E  N  G  L  A  N  D.  65 

book  is  faid  to  have  been  extant  fo  late  as  the  reign  of  king  Ed- 
ward the  fourth,  but  is  now  unfortunately  loft.  It  contained, 
we  may  probably  fuppofe,  the  principal  maxims  of  the  common 
law,  the  penalties  for  mifdemefnors,  and  the  forms  of  judicial 
proceedings.  Thus  much  may  at  leaft  be  collected  from  that  in- 
junction to  obferve  it,  which  we  find  in  the  laws  of  king  Edward 
the  elder,  the  fon  of  Alfred =.  "Omnibus  qui  reipublicae  praefwit 
"  etiam  atque  etiam  mando,  ut  omnibus  aequos  fe  praebeant  judices, 
"  perinde  ac  in  judiciali  Hbro  (Saxonice,  ^om-bzc)  Jcriptum  habetur; 
"  nee  quicquam  formident  quin  jus  commune  (Saxonice,  polcpihre^ 
"  audaSler  libereque  dicant." 

BUT  the  irruption  and  eftabliiliment  of  the  Danes  in  England, 
which  followed  foon  after,  introduced  new  cuftoms,  and  caufe'd 
this  code  of  Alfred  in  many  provinces  to  fall  into  difufe  ;  or  at 
leaft  to  be  mixed  and  debafed  with  other  laws  of  a  coarfer  alloy. 
So  that  about  the  beginning  of  the  eleventh  century  there  were 
three  principal  fyftems  of  laws  prevailing  in  different  diftricts. 
i .  The  Mercen-Lage,  or  Mercian  laws,  which  were  obferved  in 
many  of  the  midland  counties,  and  thofe  bordering  on  the  prin- 
cipality of  Wales,  the  retreat  of  the  antient  Britons  ;  and  there- 
fore very  probably  intermixed  with  the  Britifh  or  Druidical  cuf- 
toms. 2.  The  Weft- Saxon- Lage,  or  laws  of  the  weft  Saxons, 
which  obtained  in  the  counties  to  the  fouth  and  weft  of  the 
illand,  from  Kent  to  Devonshire.  Thefe  were  probably  much 
the  fame  with  the  laws  of  Alfred  above-mentioned,  being  the  mu- 
nicipal law  of  the  far  moft  confiderable  part  of  his  dominions, 
and  particularly  including  Berkfhire,  the  feat  of  his  peculiar  re- 
iidence.  3.  The  Dane-Lage,  or  Danifh  law,  the  very  name  of 
which  fpeaks  it's  original  and  compofition.  This  was  princi- 
pally maintained  in  the  reft  of  the  midland  counties,  and  alfo 
on  the  eaftern  coaft,  the  part  moft  expofed  to  the  vilits  of  that 
piratical  people.  As  for  the  very  northern  provinces,  they  were 
at  that-,  time  under  a  diftincl  government f. 

'  c.i.  {  Hal.  Hifl.jj. 

I  OUT 


66  Of   the    L  A w  s  INTRO  D. 

O  u  T  of  thefe  three  laws,  Roger  Hoveden  e  and  Ranulphus 
Ceftrenfis  h  inform  us,  king  Edward  the  confeffor  extracted  one 
uniform  law  or  digeft  of  laws,  to  be  obferved  throughout  the 
whole  kingdom;  though  Hoveden  and  the  author  of  an  old  ma- 
nufcript  chronicle  '  affure  us  likewife,  that  this  work  was  pro- 
jected and  begun  by  his  grandfather  king  Edgar.  And  indeed  a 
general  digeft  of  the  fame  nature  has  been  conftantly  found  expe- 
dient, and  therefore  put  in  practice  by  other  great  nations,  which, 
were  formed  from  an  aflemblage  of  little  provinces,  governed  by 
peculiar  cuftoms.  As  in  Portugal,  under  king  Edward,  about  the 
beginning  of  the  fifteenth  century  k.  In  Spain  under  Alonzo  X, 
who  about  the  year  1250  executed  the  plan  of  his  father  St. 
Ferdinand,  and  collected  all  the  provincial  cuftoms  into  one  uni- 
form law,  in  the  celebrated  code  entitled  las  partidas '.  And  in 
Sweden,  about  the  fame  aera,  a  univerfal  body  of  common  law 
was  compiled  out  of  the  particular  cuftoms  eftablifhed  by  the 
laghman  of  every  province,  and  intitled  the  land's  high)  being 
analagous  to  the  common  law  of  England™. 

BOTH  thefe  undertakings,  of  king  Edgar  and  Edward  the 
confeffor,  feem  to  have  been  no  more  than  a  new  edition,  or 
frefh  promulgation,  of  Alfred's  code  or  dome-book,  with  fuch 
additions  and  improvements  as  the  experience  of  a  century  and 
an  half  had  fuggefted.  For  Alfred  is  generally  ftiled  by  the  fame 
hiftorians  the  legum  Anglic cmarum  conditor,  as  Edward  the  con- 
feffor is  the  reftitutor.  Thefe  however  are  the  laws  which  our 
hiftories  fo  often  mention  under  the  name  of  the  laws  of  Edward 
the  confeffor ;  which  our  anceftors  ftruggled  fo  hardly  to  main- 
tain, under  the  firft  princes  of  the  Norman  line  ;  and  which  fub- 
fequent  princes  fo  frequently  promifed  to  keep  and  to  reftore,  as 
the  moft  popular  act  they  could  do,  when  preffed  by  foreign 
emergencies  or  domeftic  difcontents.  Thefe  are  the  laws,  that 

*  in  Hen.  II.  k  Mod.  Un.  Hifl.  xxii.  135. 

k  ;/;  Ea-~M.  Confeffor.  '   Ibid.  XX.  211. 

1  in  SelJ.  atiEattmer.6.  a  Ibid,  xxxlii.  21.  58. 

fo 


§.3.  f>f     E  N  G  L  A  N  D.  67 

fo  vigoroufly  whhflood  the  repeated  attacks  of  the  civil  law  ; 
which  eflablifhed  in  the  twelfth  century  a  new  Roman  empire 
over  mofl  of  the  flates  on  the  continent :  flates  that  have  loft, 
and  perhaps  upon  that  account,  their  political  liberties  ;  while 
the  free  conflitution  of  England,  perhaps  upon  the  fame  account, 
has  been  rather  improved  than  debafed.  Thefe,  in  fhort,  are  the 
laws  which  gave  rife  and  original  to  that  collection  of  maxims 
and  cufloms,  which  is  now  known  by  the  name  of  the  common 
laws.  A  name  either  given  to  it,  in  contradiflinction  to  other 
laws,  as  the  flatute  law,  the  civil  law,  the  law  merchant,  and 
the  like ;  or,  more  probably,  as  a  law  common  to  all  the  realm, 
the  jus  commune  orfolcrigbt  mentioned  by  king  Edward  the  elder, 
after  the  abolition  of  the  feveral  provincial  cufloms  and  particu- 
lar laws  before-mentioned. 

BUT  though  this  is  the  mofl  likely  foundation  of  this  collec- 
tion of  maxims  and  cufloms,  yet  the  maxims  and  cufloms,  fo 
collected,  are  of  higher  antiquity  than  memory  or  hiflory  can 
reach  :  nothing  being  more  difficult  than  to  afcertain  the  precife 
beginning  and  firfl  fpring  of  an  antient  and  long  eflablifhed  cuf- 
tom.  Whence  it  is  that  in  our  law  the  goodnefs  of  a  cuflom  de- 
pends upon  it's  having  been  ufed  time  out  of  mind ;  or,  in  the 
folemnity  of  our  legal  phrafe,  time  whereof  the  memory  of  man 
runneth  not  to  the  contrary.  This  it  is  that  gives  it  it's  weight 
and  authority ;  and  of  this  nature  are  the  maxims  and  cufloms 
which  compofe  the  common  law,  or  lex  non  fcripta,  of  this 
kingdom. 

THIS  unwritten,  or  common,  law  is  properly  diflinguilh- 
able  into  three  kinds :  i .  General  cufloms  -,  which  are  the  uni- 
verfal  rule  of  the  whole  kingdom,  and  form  the  common  law, 
in  it's  flridter  and  more  ufual  fignincation.  2.  Particular  cufloms ; 
which  for  the  moil  part  affect  only  the  inhabitants  of  particular 
diflricts.  3 .  Certain  particular  laws ;  which  by  cuflom  are  adopted 
and  ufed  by  fome  particular  courts,  of  pretty  general  and  ex- 
tenfive  jurifdiction. 

I    2  I.    As 


68  Of  the  LAWS  INTROD, 

I.  As  to  general  cuftoms,  or  the  common  law,  properly  (b 
called  ;  this  is  that  law,  by  which  proceedings  and  determinations 
in  the  king's  ordinary  courts  of  juftice  are  guided  and  directed. 
This,  for  the  moft  part,  fettles  the  courfe  in  which  lands  defcend 
by  inheritance;  the  manner  and  form  of  acquiring  and  transfer- 
ring property;  the  folemnities  and  obligation  of  contrails  ;  the 
rules  of  expounding  wills,  deeds,  and  acts  of  parliament;  the 
refpective  remedies  of  civil  injuries;  the  feveral  fpecies  of  tem- 
poral offences,  with  the  manner  and  degree  of  punimment ;  and 
an  infinite  number  of  minuter  particulars,  which  difFufe  them- 
felves  as  extenfively  as  the  ordinary  diftribution  of  common  juf- 
tice requires.  Thus,  for  example,  that  there  lliall  be  four  fupe- 
rior  courts  of  record,  the  chancery,  the  king's  bench,  the  com- 
mon pleas,  and  the  exchequer ; — that  the  eldeft  fon  alone  is 
heir  to  his  anceftor ; — that  property  may  be  acquired  and  trans- 
ferred by  writing;  —  that  a  deed  is  of  no  validity  unlefs  fealed 
and  delivered;  —  that  wills  mall  be  conftrued  more  favorably, 
and  deeds  more  ftrictly; — that  money  lent  upon  bond  is  reco- 
verable by  action  of  debt ; — that  breaking  the  public  peace  is 
an  offence,  and  punifhable  by  fine  and  imprifonment ;  — all 
thefe  are  doctrines  that  are  not  let  down  in  any  written  flatute 
or  ordinance,  but  depend  merely  upon  immemorial  ufage,  that  is, 
upon  common  law,  for  their  fupport. 

SOME  have  divided  the  common  law  into  two  principal 
grounds  or  foundations  :  i .  Eftabliihed  cuftoms ;  fuch  as  that 
where  there  are  three  brothers,  the  eldeft  brother  mall  be  heir 
to  the  fecond,  in  exclufion  of  the  youngeft :  and  2.  Eftablilhed 
rules  and  maxims ;  as,  "  that  the  king  can  do  no  wrong,  that  no 
"  man  fhall  be  bound  to  accufe  himfelf,"  and  the  like.  But^  take 
thefe  to  be  one  and  the  fame  thing.  For  the  authority  of  thefe 
maxims  refts  entirely  upon  general  reception  and  ufage  ;  and  the 
only  method  of  proving,  that  this  or  that  maxim  is  a  rule  of  the 
common  lav/,  is  by  mewing  that  it  hath  been  always  the  cuftom 
to  obierve  it. 

BUT 


§.  j.  0/"    ENGLAND.  69 

BUT  here  a  very  natural,  and  very  material,  queftion  arifes  : 
how  are  thefe  cuftoms  or  maxims  to  be  known,  and  by  whom  is 
their  validity  to  be  determined  ?  The  anfwer  is,  by  the  judges  in 
the  feveral  courts  of  juftice.  They  are  the  depolitary  of  the 
laws ;  the  living  oracles,  who  muft  decide  in  all  cafes  of  doubt, 
and  who  are  bound  by  an  oath  to  decide  according  to  the  law  of 
the  land.  Their  knowlege  of  that  law  is  derived  from  experience 
and  ftudy  ;  from  the  "viginti  annorum  luciibrationes"  which  For- 
tefcue  n  mentions  ;  and  from  being  long  perfonally  accuftomed  to 
the  judicial  decifions  of  their  predeceffors.  And  indeed  thefe 
judicial  decifions  are  the  principal  and  moft  authoritative  evi- 
dence, that  can  be  given,  of  the  exiftence  of  fuch  a  cuftom  as 
{hall  form  a  part  of  the  common  law.  The  judgment  itfelf,  and 
.all  the  proceedings  previous  thereto,  are  carefully  regiftered  and 
preferved,  under  the  name  of  records,  in  public  repositories  fet 
apart  for  that  particular  purpofe  -,  and  to  them  frequent  recourfe 
is  had,  when  any  critical  queftion  arifes,  in  the  determination  of 
which  former  precedents  may  give  light  or  affiftance.  And  there- 
fore, even  fo  early  as  the  conqueft,  we  find  the  "  prae teritorum 
"  memoria  eventorwn"  reckoned  up  as  one  of  the  chief  qualifica- 
tions of  thofe  who  were  held  to  be  "  legiius  patriae  optime  injli- 
"  tuti°"  For  it  is  an  eftabliflied  rule  to  abide  by  former  prece- 
dents, where  the  fame  points  come  again  in  litigation ;  as  well 
to  keep  the  fcale  of  juftice  even  and  fteady,  and  not  liable  to 
waver  with  every  new  judge's  opinion  ;  as  alfo  becaufe  the  law 
in  that  cafe  being  folemnly  declared  and  determined,  what  before 
was  uncertain,  and  perhaps  indifferent,  is  now  become  a  perma- 
nent rule,  which  it  is  not  in  the  breaft  of  any  fubfequent  judge 
to  alter  or  vary  from,  according  to  his  private  fentiments  :  he 
being  fworn  to  determine,,  not  according  to  his  own  private  judg- 
ment, but  according  to  the  known  laws  and  cuftoms  of  the  land; 
not  delegated  to  pronounce  a  new  law,  but  to  maintain  and  ex- 
pound the  old  one.  Yet  this  rule  admits  of  exception,  where 
the  former  determination  is  moft  evidently  contrary  to  reafon  ; 

*  <af.  8.  »  Sfld.  review  of  Tith.  c.  8. 

much 


70  Of   the    LAWS  INTROD. 

much  more  if  it  be  contrary  to  the  divine  law.  But  even  in  fuch 
cafes  the  fubfequent  judges  do  not  pretend  to  make  a  new  law, 
but  to  vindicate  the  old  one  from  mifreprefentation.  For  if  it  be 
found  that  the  former  decilion  is  manifestly  abfurd  or  unjuft,  it 
is  declared,  not  that  fuch  a  fentence  was  bad  law,  but  that  it  was 
not  law ;  that  is,  that  it  is  not  the  eftablifhed  cuftom  of  the  realm, 
as  has  been  erroneoufly  determined.  And  hence  it  is  that  our 
lawyers  are  with  juftice  fo  copious  in  their  encomiums  on  the 
reafon  of  the  common  law ;  that  they  tell  us,  that  the  law  is  the 
perfection  of  reafori,  that  it  always  intends  to  conform  thereto, 
and  that  what  is  not  reafon  is  not  law.  Not  that  the  particular 
reafon  of  every  rule  in  the  law  can  at  this  distance  of  time  be  al- 
ways precifely  aSfigned ;  but  it  is  fufficient  that  there  be  nothing 
in  the  rule  flatly  contradictory  to  reafon,  and  then  the  law  will 
prefume  it  to  be  well  founded p.  And  it  hath  been  an  antient 
obfervation  in  the  laws  of  England,  that  whenever  a  Standing 
rule  of  law,  of  which  the  reafon  perhaps  could  not  be  remem- 
bered or  difcerned,  hath  been  wantonly  broke  in  upon  by  Statutes 
or  new  refolutions,  the  wifdom  of  the  rule  hath  in  the  end  ap- 
peared from  the  inconveniences  that  have  followed  the  innova- 
tion. 

TH  E  doctrine  of  the  law  then  is  this :  that  precedents  and 
rules  muft  be  followed,  unlefs  flatly  abfurd  or  unjuft  :  for  though 
their  reafon  be  not  obvious  at  firft  view,  yet  we  owe  fuch  a  de- 
ference to  former  times  as  not  to  fuppofe  they  acted  wholly  with- 
out coniideration.  To  illuStrate  this  doctrine  by  examples.  It  has 
been  determined,  time  out  of  mind,  that  a  brother  of  the  half 
blood  ihall  never  fucceed  as  heir  to  the  eftate  of  his  half  bro- 
ther, but  it  mall  rather  efcheat  to  the  king,  or  other  Superior 
lord.  Now  this  is  a  politive  law,  fixed  and  established  by  cuf- 
tom, which  cuftom  is  evidenced  by  judicial  decifions  ;  and  there- 
fore can  never  be  departed  from  by  any  modern  judge  without  a 

P  Herein  agreeing  with  the  civil  law,  "  Et  idea  rat  i ones  eofum  qsiae  conjiltuitntur,  i/i- 
Ff.  1.3.  20,  21 .  "  Non  omnium,  quae  a  tnajo-  "  quiri  non  cfortet :  alicquin  mutta  ex  bis,  quae 
"  ribtts  »ojlr:s  tonflituia  Junt,  ratio  reddi  fcteji.  "  ter/a  funt,  fubvertUHtur," 

breach 


|,  3.  ^ENGLAND. 

breach  of  his  oath  and  the  law.  For  herein  there  is  nothing  re- 
pugnant to  natural  juftice;  though  the  realbn  of  it,  drawn  from 
the  feodal  law,  may  not  be  quite  obvious  to  every  body.  And 
therefore,  on  account  of  a  fuppofed  hardfhip  upon  the  half  bro- 
ther, a  modern  judge  might  wifli  it  had  been  otherwife  fettled ; 
yet  it  is  not  in  his  power  to  alter  it.  But  if  any  court  were  now 
to  determine,  that  an  elder  brother  of  the  half  blood  might  enter 
upon  and  feife  any  lands  that  were  purchafed  by  his  younger 
brother,  no  fubfequent  judges  would  fcruple  to  declare  that  fuch 
prior  determination  was  unjurt,  was  unreafonable,  and  therefore 
was  not  law.  So  that  the  law,  and  the  opinion  of  the  judge  are  not 
always  convertible  terms,  or  one  and  the  fame  thing  ;  iince  it 
fometimes  may  happen  that  the  judge  may  nrijiake  the  law.  Upon 
the  whole  however,  we  may  take  it  as  a  general  rule,  "  that  the 
"  decifions  of  courts  of  justice  are  the  evidence  of  what  is  com- 
"  mon  law  :"  in  the  fame  manner  as,  in  the  civil  law,  what  the 
emperor  had  once  determined  was  to  ferve  for  a  guide  for  the 
future  q. 

TH  E  decifions  therefore  of  courts  are  held  in  the  higheft  re- 
gard, and  are  not  only  preferved  as  authentic  records  in  the  trea- 
luries  of  the  feveral  courts,  but  are  handed  out  to  public  view  in 
the  numerous  volumes  of  reports  which  furnilh  the  lawyer's  li- 
brary. Thefe  reports  are  hiflories  of  the  feveral  cafes,  with  a 
iliort  fummary  of  the  proceedings,  which  are  preferved  at  large 
in  the  record  j  the  arguments  on  both  lides  ;  and  the  reafons  the 
court  gave  for  it's  judgment;  taken  down  in  fhort  notes  by 
perfons  prefent  at  the  determination.  And  thefe  ferve  as  indexes 
to,  and  alfo  to  explain,  the  records;  which  always,  in  matters- 
of  confequence  and  nicety,  the  judges  direcl:  to  be  fearched.  The 
reports  are  extant  in  a  regular  feries  from  the  reign  of  king  Ed- 
ward the  fecond  inclufive ;  and  from  his  time  to  that  of  Henry 

1  "  Si  imperialis  tr.ajtftai  caufiim  ccgnitio-ia-  "  qui  f:ib  r.cftro  hnficrio  f;tnt,  fciant  hanc  effe 
"  liter  examinaiierii,  et  fartil-us  cominus  confti-  "  Ic^em,  i:t:t  jolv.m  illi  caujae  pro  qua  product* 
"  tutis  feiitentiam  dixeril,  omnes  omnino  jitdices,  "  £/!-,  Jed  ci  hi  cmnibus  j militus,"  C. 1 .  1 4. 1 2. 

the 


72  Of  the  LAWS  INT  ROD. 

the  eighth  were  taken  by  the  prothonotaries,  or  chief  fcribes  of 
the  court,  at  the  expenfe  of  the  crown,  and  published  annually, 
whence  they  are  known  under  the  denomination  of  the  year  books. 
And  it  is  much  to  be  wiihed  that  this  beneficial  cuftom  had,  un- 
der proper  regulations,  been  continued  to  this  day :  for,  though 
king  James  the  firft  at  the  inftance  of  lord  Bacon  appointed  two 
reporters  with  a  handfome  flipend  for  this  purpofe,  yet  that  wife 
inftitution  was  foon  neglected,  and  from  the  reign  of  Henry  the 
eighth  to  the  prefent  time  this  talk  has  been  executed  by  many 
private  and  cotemporary  hands  ;  who  fometimes  through  hafte 
and:  inaccuracy,  fometimes  through  miftake  and  want  of  fkill, 
have  published  very  crude  and  imperfect  (perhaps  contradictory) 
accounts  of  one  and  the  fame  determination.  Some  of  the  moil 
valuable  of  the  antient  reports  are  thofe  publifhed  by  lord  chief 
juftice  Coke  ;  a  man  of  infinite  learning  in  his  profefTion,  though 
not  a  little  infected  with  the  pedantry  and  quaintnefs  of  the 
times  he  lived  in,  which  appear  ftrongly  in  all  his  works.  How- 
ever his  writings  are  fo  highly  efteemed,  that  they  are  generally 
cited  without  the  author's  name r. 

BESIDES  thefe  reporters,  there  are  alfo  other  authors,  to 
whom  great  veneration  and  refpect  is  paid  by  the  ftudents  of  the 
common  law.  Such  are  Glanvil  and  Bracton,  Britton  and  Fleta, 
Littleton  and  Fitzherbert,  with  fome  others  of  antient  date,  whole 
treatifes  are  cited  as  authority  -,  and  are  evidence  that  cafes  have 
formerly  happened  in  which  fuch  and  fuch  points  were  determi- 
ned, which  are  now  become  fettled  and  firft  principles.  One  of 
the  laft  of  thefe  methodical  writers  in  point  of  time,  whofe  works 
are  of  any  intrinfic  authority  in  the  courts  of  juftice,  and  do  not 
entirely  depend  on  the  ftrength  of  their  quotations  from  older 

r    His   reports,    for  inftance,    are   (Hied,  three  volumes  were  determined  ;  -viz.  queen 

K*T  tlw,  tbe  reports  ;  and  in  quoting  them  Elizabeth,   king  James,  and   king  Charles 

we  iruallyfay,  loriRep.  not  i  orzCoke's  the  firft;  as  well  as  by  the  number  of  each 

Rep.  as   in   citing  other  authors.    There-  volume.     For  fometimes  we  call  them  i,  2, 

ports  of  judge  Croke  are  alfo  cited  in  a  pe-  and  3  Cro.  but  more  commonly  Cro.  Eliz. 

culiar  manner,  by  the  name  of  thofe  prin-  Cro.  Jac.  and  Cro.  Car. 
ces,  in  whofe  reigns  the  cafes  reported  in  h:s 

authors, 


§.  3-  of  ENGLAND.  73 

authors,  is  the  fame  learned  judge  we  have  juft  mentioned,  fir 
Edward  Coke ;  who  hath  written  four  volumes  of  inftitutes,  as 
he  is  pleafed  to  call  them,  though  they  have  little  of  the  inftitu- 
tional  method  to  warrant  fuch  a  title.  The  firft  volume  is  a  very 
extenfive  comment  upon  a  little  excellent  treatife  of  tenures,  com- 
piled by  judge  Littleton  in  the  reign  of  Edward  the  fourth.  This 
comment  is  a  rich  mine  of  valuable  common  law  learning,  collect  - 
ed  and  heaped  together  from  the  antient  reports  and  year  books, 
but  greatly  defective  in  method3.  The  fecond  volume  is  a  com- 
ment upon  many  old  acts  of  parliament,  without  any  fyftematical 
order ;  the  third  a  more  methodical  treatife  of  the  pleas  of  the 
crown ;  and  the  fourth  an  account  of  the  feveral  fpecies  of  courts c. 

AND  thus  much  for  the  firft  ground  and  chief  corner  ftone 
of  the  laws  of  England,  which  is,  general  immemorial  cuftom, 
or  common  law,  from  time  to  time  declared  in  the  decifions  of 
the  courts  of  jufticej  which  decifions  are  preferved  among  our 
public  records,  explained  in  our  reports,  and  digefted  for  general 
ufe  in  the  authoritative  writings  of  the  venerable  fages  of  the  law. 

THE  Roman  law,  as  pradtifed  in  the  times  of  it's  liberty, 
paid  alfo  a  great  regard  to  cuftom ;  but  not  fo  much  as  our  law : 
it  only  then  adopting  it,  when  the  written  law  was  deficient. 
Though  the  reafons  alleged  in  the  digeft"  will  fully  juftify  our 
practice,  in  making  it  of  equal  authority  with,  when  it  is  not 
contradicted  by,  the  written  law.  "  For  fince,  fays  Julianus,  the 
"  written  law  binds  us  for  no  other  reafon  but  becaufe  it  is  ap- 
"  proved  by  the  judgment  of  the  people,  therefore  thofe  laws 
"  which  the  people  have  approved  without  writing  ought  alfo  to 
"bind  every  body.  For  where  is  the  difference,  whether  the 
"  people  declare  their  affent  to  a  law  by  fuffrage,  or  by  a  uniform 

!  It  is  ufually  cited  either  by  the  name  the  works  of  no  other  writer ;  the  genera- 

of  Co.  Litt.  or  as  I  Inft.  lity  of  reports  and  other  trails  being  quoted 

'  Thefe  are  cited  as  2,  3,  or  4  Inft.  with-  in  the  name  of  the  compiler,  as  z  Ventris, 

out  any  author's  name.    An  honorary  dif-  4  Leonard,   i  Siderfin,  and  the  like, 
tin&ion,  which,    we  obferved,    is  paid  to         u  Ff.  i.  3.32. 

K  "  courfe 


74  Of   the    L  A  w  s  I  N  T  R  o  D. 

<fcourfe  of  acting  accordingly?"  Thus  did  they  reafon  while 
Rome  had  fome  remains  of  her  freedom ;  but,  when  the  imperial 
tyranny  came  to  be  fully  eftablifhed,  the  civil  laws  fpeak  a  very 
different  language.  "  Quod  prmcipi  placuit  legis  babet  vigor  em, 
"  curn  populus  el  et  in  eum  omne  Junm  imperium  et  pot  eft  at  em  confe- 
"  rat,"  fays  Ulpian  w.  "  Imperator  fohis  et  conditor  et  interpret  le- 
"  gis  exiftimatur,"  fays  the  codex.  And  again,  "facrilegii  inftar 
"  eft  refcripto  principis  obviare y,"  And  indeed  it  is  one  of  the  cha- 
racteriftic  marks  of  Englifh  liberty,  that  our  common  law  de- 
pends upon  cuftom ;  which  carries  this  internal  evidence  of  free- 
dom along  with  it,  that  it  probably  was  introduced  by  the  volun- 
tary confent  of  the  people. 

II.  THE  fecond  branch  of  the  unwritten  laws  of  England  are 
particular  cuftoms,  or  laws  which  affect  only  the  inhabitants  of 
particular  diftricts. 

THESE  particular  cufloms,  or  fome  of  them,  are  without 
doubt  the  remains  of  that  multitude  of  local  cuftoms  before-men- 
tioned, out  of  which  the  common  law,  as  it  now  ftands,  was 
collected  at  firft  by  king  Alfred,  and  afterwards  by  king  Edgar 
and  Edward  the  confeffor :  each  diftrict  mutually  facrificing  fome 
of  it's  own  fpecial  ufages,  in  order  that  the  whole  kingdom  might 
enjoy  the  benefit  of  one  uniform  and  univerfal  fyftem  of  laws. 
But,  for  reafons  that  have  been  now  long  forgotten,  particular 
counties,  cities,  towns,  manors,  and  lordfhips,  were  very  early 
indulged  with  the  privilege  of  abiding  by  their  own  cuftoms,  in 
contradiftinction  to  the  reft  of  the  nation  at  large  :  which  pri- 
yilege  is  confirmed  to  them  by  feveral  acts  of  parliament z. 

SUCH  is  the  cuftom  of  gavelkind  in  Kent  and  fome  other 
parts  of  the  kingdom  (though  perhaps  it  was  alfo  general  till  the 
Norman  conqueft)  which  ordains,  among  other  things,  that  not 

w  Ff.  i.  4.  i.  z  Mag.  Cart.  €.9.  —  I  Edw.  III.  ft.  2. 

*  C.  i.  14.  12.  c.  9.  —  14  Edw.  III.    ft.  i.    c.i.  —  and 

»  C.  i.  23.  5.  2  Hen.  IV.   c.  !. 

the 


§.  3.  ^ENGLAND.  75 

the  deleft  fon  only  of  the  father  fhall  fucceed  to  his  inheritance, 
but  all  the  fons  alike  :  and  that,  though  the  anceftor  be  attainted 
and  hanged,  yet  the  heir  fhall  fucceed  to  his  eftate,  without  any 
efcheat  to  the  lord.  —  Such  is  the  cuftom  that  prevails  in  divers 
antient  boroughs,  and  therefore  called  borough-englifh,  that  the 
youngeft  fon  fhall  inherit  the  eftate,  in  preference  to  all  his  elder 
brothers.  —  Such  is  the  cuftom  in  other  boroughs  that  a  widow 
fhall  be  intitled,  for  her  dower,  to  all  her  hufband's  lands;  whereas 
at  the  common  law  fhe  fhall  be  endowed  of  one  third  part  only. 
—  Such  alfo  are  the  fpecial  and  particular  cuftoms  of  manors,  of 
which  every  one  has  more  or  lefs,  and  which  bind  all  the  copy- 
hold-tenants that  hold  of  the  faid  manors.  —  Such  likewife  is 
the  cuftom  of  holding  divers  inferior  courts,  with  power  of  try- 
ing caufes,  in  cities  and  trading  towns ;  the  right  of  holding 
which,  when  no  royal  grant  can  be  fhewn,  depends  entirely  up- 
on immemorial  and  eftablifhed  ufage.  —  Such,  laftly,  are  many 
particular  cuftoms  within  the  city  of  London,  with  regard  to 
trade,  apprentices,  widows,  orphans,  and  a  variety  of  other  mat- 
ters. All  thefe  are  contrary  to  the  general  law  of  the  land,  and 
are  good  only  by  fpecial  ufage,  though  the  cuftoms  of  London 
are  alfo  confirmed  by  adl  of  parliament a. 

To  this  head  may  moft  properly  be  referred  a  particular  fyf- 
tem  of  cuftoms  ufed  only  among  one  fet  of  the  king's  fubje&s, 
called  the  cuftom  of  merchants  or  lex  mercatoria :  which,  how- 
ever different  from  the  general  rules  of  the  common  law,  is  yet 
ingrafted  into  it,  and  made  a  part  of  it b ;  being  allowed,  for  the 
benefit  of  trade,  to  be  of  the  utmoft  validity  in  all  commercial 
tranfactions :  for  it  is  a  maxim  of  law,  that  "  cuilibet  in  fua  arts 
"  credendum  eft." 

THE  rules  relating  to  particular  cuftoms  regard  either  the 
proof  of  their  exiftence ;  their  legality  when  proved  j  or  their 
ufual  method  of  allowance.  And  firft  we  will  confider  the  rules 
of  •proof. 

»  8  Rep,  126.    Cfo.  Car.  347.  t>  Winch.  24, 

K  2  As 


76  Of    the    L  A  w  s  IN  TROD, 

A  s  to  gavelkind,  and  borough-englifh,  the  law  takes  parti- 
cular notice  of  them c,  and  there  is  no  occafion  to  prove  that 
fuch  cuftoms  actually  exift,  but  only  that  the  lands  in  queftion 
are  fubject  thereto.  All  other  private  cuftoms  rnuft  be  particu- 
larly pleaded  d,  and  as  well  the  exiftence  of  fuch  cuftoms  muft  be 
fhewn,  as  that  the  thing  in  difpute  is  within  the  cuftom  alleged. 
The  trial  in  both  cafes  (both  to  mew  the  exiftence  of  the  cuftom,, 
as,  "  that  in  the  manor  of  Dale  lands  mall  defceud  only  to  the 
"  heirs  male,  and  never  to  the  heirs  female ;"  and  alfo  to  fhew 
"  that  the  lands  in  queftion  are  within  that  manor")  is  by  a  jury  of 
twelve  men,  and  not  by  the  judges  ;  except  the  fame  particular 
cuftom  has  been  before  tried,  determined,  and  recorded  in  the 
fame  court  °. 

THE  cuftoms  of  London  differ  from  all  others  in  point  of 
trial :  for,  if  the  exiftence  of  the  cuftom  be  brought  in  queftion, 
it  {hall  not  be  tried  by  a  jury,  but  by  certificate  from  the  lord 
mayor  and  aldermen  by  the  mouth  of  their  recorder f ;  unlefs  it- 
be  fuch  a  cuftom  as  the  corporation  is  itfelf  interefted  in,  as  a 
right  of  taking  toll,  &c,  for  then  the  law  permits  them  not  to 
certify  on  their  own  behalf g. 

WH  E  N  a  cuftom  is  actually  proved  to  exift,  the  next  enquiry 
is  into  the  legality  of  it ;  for,  if  it  is  not  a  good  cuftom,  it  ought 
to  be  no  longer  ufed.  "  Mains  iifus  abokndns  eft"  is  an  eftablimed 
maxim  of  the  lawh.  To  make  a  particular  cuftom  good,  the 
following  are  neceflary  requifites. 

i.  THAT  it  have  been  ufed  fo  long,  that  the  memory  of 
man  runneth  not  to  the  contrary.  So  that,  if  any  one  can  mew 
the  beginning  of  it,  it  is  no  good  cuftom.  For  which  reafon  no 
cuftom  can  prevail  againft  an  exprefs  act  of  parliament ;  fince 

c  Co.  Lm.  175.  f  Cro.  Car.  516. 

*  Lltt.  §.265.  f  Hob.  85. 

'  Dr  &  St.  i.io.  k  Litt.  §.  212.    4  Inft.  274. 

the 


§.  3>  of   ENGLAND.  77 

the  ftatute  itfelf  is  a  proof  of  a  time  when  fuch  a  cuflom  did 
not  exiftj. 

2.  IT    muft  have  been   continued.     Any  interruption  would 
caufe  a  temporary  ceafing  :    the  revival  gives  it  a  new  beginning, 
which  will  be  within  time  of  memory,  and  thereupon  the  cuf- 
tom  will  be  void.    But  this  muft  be  underftood  with  regard  to  an 
interruption  of  the  right ;    for  an  interruption  of  the  poffejjion 
only,  for  ten  or  twenty  yeara,  will  not  deftroy  the  cuftom  '.    As  if 
the  inhabitants  of  a  parifh  have  a  cuftomary  right  of  watering' 
their  cattle  at  a  certain  pool,  the  cuftom  is  not  deftroyed,  though1 
they  do  not  ufe  it  for  ten  years ;  it  only  becomes  more  difficult 
to  prove :    but  if  the  right  be  any  how  difcontinued  for  a  day, 
the  cuftom  is  quite  at  an  end. 

3.  IT  muft  have  been  peaceable,  and  acquiefced  in ;  not  fub- 
jedt  to  contention  and  difpute  k.    For  as  cuftoms  owe  their  origi- 
nal to  common  confent,  their  being  immemorially  difputed  either 
at  law  or  otherwife  is  a  proof  that  fuch  confent  was  wanting. 

4.  CUSTOMS   muft  be  reasonable J ;    or  rather,  taken  nega- 
tively, they  muft  not  be  unreafonable.     Which  is  not  always,  as 
fir  Edward  Coke  faysm,  to  be  underftood  of  every  unlearned  man's* 
reafon,  but  of  artificial  and  legal  reafon,  warranted  by  authority 
of  law.     Upon  which   account  a  cuftom  may  be  good,  though 
the  particular  reafon  of  it  cannot  be  affigned ;   for  it  fufficeth,  if 
no  good  legal  reafon  can  be  affigned  againft  it.  Thus  a  cuftom  in 
a  parifh,  that  no  man  fhall  put  his   beafts  into  the  common  till 
the  third  of  October,   would  be  good ;   and  yet  it  would  be  hard 
to  mew  the  reafon  why  that  day  in  particular  is  fixed  upon,   ra- 
ther than  the  day  before  or  after.     But  a  cuftom,   that  no  cattla 
mail  be   put  in  till  the  lord  of  the  manor  has  firft  put  in  his,  is 
unreafonable,  and  therefore  bad  :    for  peradventure  the  lord  will 
never  put  in  his ;  and  then  the  tenants  will  lofe  all  their  profits n,. 

j  Co.  Liu.  113.  i  Litt.  $.212. 

'  Ibid.  114.  m   I  Inft.  62. 

"  ItiJ.  »  Co.  Copyh.   §.33.  r.    CUS- 


78  Of   the    LAWS  IN  TROD. 

5.  CUSTOMS  ought  to  be  certain.     A  cuflom,  that  lands 
(hall  defcend  to  the  mofl  worthy  of  the  owner's  blood,  is  void; 
for  how  fhall  this  worth  be  determined  ?  but  a  cuflom  to  defcend 
to  the  next  male  of  the  blood,  exclufive  of  females,  is  certain, 
and  therefore  good  °.   A  cuflom,  to  pay  two  pence  an  acre  in  lieu 
of  tithes,  is  good ;   but  to  pay  fometimes  two  pence  and  fome- 
times  three  pence,  as  the  occupier  of  the  land  pleafes,  is  bad  for 
it's  uncertainty.    Yet  a  cuflom,  to  pay  a  year's  improved  value 
for  a  fine  on  a  copyhold  eflate,  is  good :    though  the  value  is  a 
thing  uncertain  :   for  the  value  may  at  any  time  be  afcertained ; 
and  the  maxim  of  law  is,  id  certum  ejlt  quod  cerium  reddi  potejl. 

6.  CUSTOMS,  though  eflablifhed  by  confent,  mufl  be  (when 
eflablifhed)  compulfory ;  and  not  left  to  the  option  of  every  man, 
whether  he  will  ufe  them  or  no.    Therefore  a  cuflom,  that  all 
the  inhabitants  mall  be  rated  toward  the  maintenance  of  a  bridge, 
will  be  good ;    but  a  cuflom,  that  every  man  is  to  contribute 
thereto  at  his  own  pleafure,  is  idle  and  abfurd,  and,  indeed,  no 
cuflom  at  all. 

7.  LASTLY,    cufloms  mufl  be  conjiftent  with  each  other: 
one  cuflom  cannot  be  fet  up  in  oppofition  to  another.    For  if 
both  are  really  cufloms,  then  both  are  of  equal  antiquity,  and 
both  eflablifhed  by  mutual  confent :    which  to  fay  of  contradic- 
tory cufloms  is  abfurd.    Therefore,  if  one  man  prefcribes  that 
by  cuflom  he  has  a  right  to  have  windows  looking  into  another's 
garden  ;    the  other  cannot  claim  a  right  by  cuflom  to  flop  up  or 
obflruct  thofe  windows  :    for  thefe  two  contradictory  cufloms 
cannot  both  be  good,  nor  both  fland  together.    He  ought  rather 
to  deny  the  exiflence  of  the  former  cuilom p. 

NEXT,  as  to  the  allowance  of  fpecial  cufloms.  Cufloms,  in 
derogation  of  the  common  law,  mufl  be  conflrued  flridlly.  Thus, 
by  the  cuflom  of  gavelkind,  an  infant  of  fifteen  years  may  by  one 

0  i  Roll.  Abr.  565.  P  9  Rep.  58. 

fpecies 


E  N  G  L  A  N  D.  79 

fpecies  of  conveyance  (called  a  deed  of  feofFment)  convey  away 
his  lands  in  fee-fimple,  or  for  ever.  Yet  this  cufiom  docs  not 
impower  him  to  ufe  any  other  conveyance,  or  even  to  leafe  them 
for  feven  years  :  for  the  cuftom  mud  be  ftrictly  purfued q.  And, 
moreover,  all  fpecial  cuftoms  mufl  fubmit  to  the  king's  prerogative. 
Therefore,  if  the  king  purchafes  lands  of  the  nature  of  gavelkind, 
where  all  the  fons  inherit  equally ;  yet,  upon  the  king's  demife, 
his  eldefl  fon  mail  fucceed  to  thofe  lands  alone r.  And  thus  much 
for  the  fecond  part  of  the  leges  non  fcriptae,  or  thofe  particular 
cuftoms  which  affect  particular  perfons  or  diftricts  only. 

III.  THE  third  branch  of  them  are  thofe  peculiar  laws,  which 
by  cuftom  are  adopted  and  ufed  only  in  certain  peculiar  courts 
and  jurifdictions.  And  by  thefe  I  underftand  the  civil  and  canon 
laws. 

I  T  may  feem  a  little  improper  at  firft  view  to  rank  thefe  laws 
under  the  head  of  leges  non  fcriptae,  or  unwritten  laws,  feeing 
they  are  fet  forth  by  authority  in  their  pandects,  their  codes,  and 
their  inftitutions;  their  councils,  decrees,  and  decretals;  and 
enforced  by  an  immenfe  number  of  expofitions,  decifions,  and 
treatifes  of  the  learned  in  both  branches  of  the  law.  But  I  do 
this,  after  the  example  of  fir  Matthew  Hale5,  becaufe  it  is  moil 
plain,  that  it  is  not  on  account  of  their  being  'written  laws,  that 
either  the  canon  law,  or  the  civil  law,  have  any  obligation  within 
this  kingdom ;  neither  do  their  force  and  efficacy  depend  upon 
their  own  intrinfic  authority ;  which  is  the  cafe  of  our  written 
laws,  or  acts  of  parliament.  They  bind  not  the  fubjects  of  Eng- 
land, becaufe  their  materials  were  collected  from  popes  or  empe- 
rors ;  were  digefted  by  Juftinian,  or  declared  to  be  authentic  by 
Gregory.  Thefe  confiderations  give  them  no  authority  here  :  for 
the  legiflature  of  England  doth  not,  nor  ever  did,  recognize 
any  foreign  power,  as  fuperior  or  equal  to  it  in  this  kingdom  ; 
or  as  having  the  right  to  give  law  to  any,  the  meaneft,  of  it's 

9  Co.  Cop.  §.  33.  »  Hifl.  C.  L.  c.  2. 

1  Co.  Liu.  15. 

fubjects. 


'8o  Of    the    L  A  w  s  I  N  T  R  o  D. 

•fubjects.  But  all  the  ftrength  that  either  the  papal  or  imperial 
laws  have  obtained  in  this  realm  (or  indeed  in  any  other  kingdom 
in  Europe)  is  only  becaufe  they  have  been  admitted  and  received 
by  immemorial  ufage  and  cuftom  in  fome  particular  cafes,  and 
fome  particular  courts  ;  and  then  they  form  a  branch  of  the  leges 
nonfcriptae,  or  cuftomary  law  :  or  elfe,  becaufe  they  are  in  fome 
other  cafes  introduced  by  confent  of  parliament,  and  then  they  owe 
their  validity  to  the  leges  fcriptae,  or  ftatute  law.  This  is  expreffly 
declared  in  thofe  remarkable  words  of  the  flatute  25  Hen.  VIII. 
c.  21.  addreffed  to  the  king's  royal  majefty.  —  "This  your  grace's 
"  realm,  recognizing  no  fuperior  under  God  but  only  your  grace, 
"  hath  been  and  is  free  from  fubjection  to  any  man's  laws,  but 
"  only  to  fuch  as  have  been  deviled,  made,  and  ordained  within 
"  this  realm  for  the  wealth  of  the  fame  -,  or  to  fuch  other  as,  by 
"  fufferance  of  your  grace  and  your  progenitors,  the  people  of 
«'  this  your  realm  have  taken  at  their  free  liberty,  by  their  own 
"  confent,  to  be  ufed  among  them ;  and  have  bound  themfelves 
"by  long  ufe  and  cuftom  to  the  obfervance  of  the  fame  :  not  as 
<(  to  the  obfervance  of  the  laws  of  any  foreign  prince,  potentate, 
«'  or  prelate ;  but  as  to  the  cujlomed  arid  antient  laws  of  this  realm, 
"  originally  eftablifhed  as  laws  of  the  fame,  by  the  faid  fuffer- 
•"  ance,  confents,  and  cuftom  ;  and  none  otherwife." 

BY  the  civil  law,  abfolutely  taken,  is  generally  understood  the 
civil  or  municipal  law  of  the  Roman  empire,  as  comprized  in  the 
inftitutes,  the  code,  and  the  digeft  of  the  emperor  Juftinian,  and 
the  novel  conftitutions  of  himfelf  and  fome  of  his  fuccefTors. 
Of  which,  as  there  will  frequently  be  occafion  to  cite  them,  by 
way  of  illuftrating  our  own  laws,  it  may  not  be  amifs  to  give  a 
(hort  and  general  account. 

THE  Roman  law  (founded  firft  upon  the  regal  conftitutions  of 
their  antient  kings,  next  upon  the  twelve  tables  of  the  decemviri, 
then  upon  the  laws  or  ftatutes  enacted  by  the  fenate  or  people, 
the  edidls  of  the  praetor,  and  the  refponja  prudentum  or  opinions 
of  learned  lawyers,  and  laftly  upon  the  imperial  decrees,  or  con- 
ftitutions 


§„  3«  Of     E  N  G  L  A  N  D.  8l 

ftitutions  of  fucceffive  emperors)  had  grown  to  fo  great  a  bulk, 
or,  as  Livy  expreffes  it',  "  tarn  immenfus  allarum  fuper  alias  acer- 
"  vat  arum  legum  cumulus"  that  they  were  computed  to  be  many 
camels'  load  by  an  author  who  preceded  Juftinian  n.  This  was  in 
part  remedied  by  the  collections  of  three  private  lawyers,  Gre- 
gorius,  Hermogenes,  and  Papirius ;  and  then  by  the  emperor 
Theodolius  the  younger,  by  whofe  orders  a  code  was  compiled, 
A.D.  438,  being  a  methodical  collection  of  all  the  imperial  con- 
ftitutions  then  in  force  :  which  Theodolian  code  was  the  only 
book  of  civil  law  received  as  authentic  in  the  weftern  part  of 
Europe  till  many  centuries  after;  and  to  this  it  is  probable 
that  the  Franks  and  Goths  might  frequently  pay  fome  regard,  in 
framing  legal  constitutions  for  their  newly  creeled  kingdoms.  For 
Juftinian  commanded  only  in  the  eaftern  remains  of  the  empire ; 
and  it  was  under  his  aufpices,  that  the  prefent  body  of  civil  law 
was  compiled  and  finimed  by  Tribonian  and  other  lawyers,  about 
the  year  533. 

THIS  confifls  of,  i .  The  inftitutes,  which  contain  the  ele- 
ments or  firft  principles  of  the  Roman  law,  in  four  books.  2.  The 
digefts,  or  pandects,  in  fifty  books,  containing  the  opinions  and 
writings  of  eminent  lawyers,  digefted  in  a  fyftematical  method. 
3.  A  new  code,  or  collection  of  imperial  conftitutions,  the  lapfe 
of  a  whole  century  having  rendered  the  former  code,  of  Theo- 
dofius,  imperfect.  4.  The  novels,  or  new  conftitutions,  pofterior 
in  time  to  the  other  books,  and  amounting  to  a  fupplement  to 
the  code  ;  containing  new  decrees  of  fucceffive  emperors,  as  new 
questions  happened  to  arife.  Thefe  form  the  body  of  Roman  law, 
or  corpus  juris  chilis,  as  publifhed  about  the  time  of  Juftinian : 
which  however  fell  foon  into  neglect  and  oblivion,  till  about  the 
year  1130,  when  a  copy  of  the  digefts  was  found  at  Amalfi  in 
Italy ;  which  accident,  concurring  with  the  policy  of  the  Romifh 
ecclefiaftics  w,  fuddenly  gave  new  vogue  and  authority  to  the  ci- 
vil law,  introduced  it  into  feveral  nations,  and  occasioned  that 

'  /•  3-  f-34-  w  See  §.  i.  pag.  18. 

u  Taylor's  elements  of  civil  law.  17. 

L  mighty 


8 2  Of    the    LAWS  IN  TROD, 

mighty  inundation  of  voluminous   comments,  with  which  this 
fyftem  of  law,  more  than  any  other,  is  now  loaded. 

THE  canon  law  is  a  body  of  Roman  ecclefiaftical  law,  relative 
to  fuch  matters  as  that  church  either  has,  or  pretends  to  have, 
the  proper  jurifdi<ftion  over.  This  is  compiled  from  the  opinions' 
of  the  antient  Latin  fathers,  the  decrees  of  general  councils,  the 
decretal  epiftles  and  bulles  of  the  holy  fee.  All  which  lay  in  the 
fame  diforder  and  confufion  as  the  Roman  civil  law,  till  about  the 
year  1151  one  Gratian  an  Italian  monk,  animated  by  the  difcovery 
of  Juftinian's  pandects,  reduced  the  ecclefiaftical  conflitutions  alfo 
into  fome  method  in  three  books,  which  he  entitled  concordia  dif- 
cordanthim  canonum,  but  which  are  generally  known  by  the  name 
of  decretum  Gratiani.  Thefe  reached  as  low  as  the  time  of  pope 
Alexander  III.  The  fubfequent  papal  decrees,  to  the  pontificate 
of  Gregory  IX,  were  publifhed  in  much  the  fame  method  un- 
der the  aufpices  of  that  pope,  about  the  year  1230,  in  five  books 
entitled  decretalla  Gregorii  noni^  A  fixth  book  was  added  by 
Boniface  VIII,  about  the  year  1298,  which  is  called  fextus  decre- 
talium.  The  Clementine  conftitutions,  or  decrees  of  Clement  V,. 
were  in  like  manner  authenticated  in  1317  by  his  fucceflbr 
John  XXII  •,  who  alfo  publifhed  twenty  conftitutions  of  his  own, 
called  the  extravagant  is  Jcannis :  all  which  in  fome  meafure 
anfwer  to  the  novels  of  the  civil  law.  To  thefe  have  been  lince 
added  fome  decrees  of  later  popes  in  five  books,  called  extra- 
vagantes  communes.  And  all  thefe  together,  Gratian's  decree, 
Gregory's  decretals,  the  fixth  decretal,  the  Clementine  conftitu- 
tions, and  the  extravagants  of  John  and  his  fucceflbrs,  form  the 
corpus  juris  canonic? >  or  body  of  the  Roman  canon  law. 

BESIDES  thefe  pontificial  collections,  which  during  the  times 
of  popery  were  received  as  authentic  in  this  illand,  as  well  as  in 
other  parts  of  chriftendom,  there  is  alfo  a  kind  of  national  canon 
law,  compofed  o£/egattne  and  provincial  conftitutions,  and  adapted 
only  to  the  exigencies  of  this  church  and  kingdom.  The  hgatine 
conftitutions  were  ecclefiaftical  laws,  enacted  in  national  fynods, 

held 


§.  3«  of     E  N  G  L  A  N  D.  83 

held  under  the  cardinals  Otho  and  Othobon,  legates  from  pope 
Gregory  IX  and  pope  Clement  IV,  in  the  reign  of  king  Henry  III 
about  the  years  1220  and  1268.  The  provincial  constitutions  are 
principally  the  decrees  of  provincial  fynods,  held  under  divers 
arch-bifhops  of  Canterbury,  from  Stephen  Langton  in  the  reign 
of  Henry  III  to  Henry  Chichele  in  the  reign  of  Henry  V  ;  and 
adopted  alfo  by  the  province  of  Yorkx  in  the  reign  of  Henry  VI. 
At  the  dawn  of  the  reformation,  in  the  reign  of  king  Henry  VIII, 
it  was  enacted  in  parliament y  that  a  review  fhould  be  had  of  the 
canon  law;  and,  till  fuch  review  mould  be  made,  all  canons,  con- 
ilitutions,  ordinances,  and  fynodals  provincial,  being  then  already 
made,  and  not  repugnant  to  the  law  of  the  land  or  the  king's 
prerogative,  fhould  ftill  be  ufed  and  executed.  And,  as  no  fuch 
review  has  yet  been  perfected,  upon  this  flatute  now  depends  the 
authority  of  the  canon  law  in  England. 

A  s  for  the  canons  enacted  by  the  clergy  under  James  I,  in  the 
year  1603,  and  never  confirmed  in  parliament,  it  has  been  folemnly 
adjudged  upon  the  principles  of  law  and  the  constitution,  that 
where  they  are  not  merely  declaratory  of  the  antient  canon  law* 
but  are  introductory  of  new  regulations,  they  do  not  bind  the 
laity  zi  whatever  regard  the  clergy  may  think  proper  to  pay  them. 

THERE  are  four  fpecies  of  courts  in  which  the  civil  and  ca- 
non laws  are  permitted  under  different  restrictions  to  be  ufed. 
i.  The  courts  of  the  arch-bifhops  and  bimops  and  their  deri- 
vative officers,  ufually  called  in  our  law  courts  cb.rifr.ian,  curiae 
chriftianitatis,  or  the  ecclefiaftical  courts.  2.  The  military  courts. 
3.  The  courts  of  admiralty.  4.  The  courts  of  the  two  univer- 
fities.  In  all,  their  reception  in  general,  and  the  different  de- 
grees of  that  reception,  are  grounded  intirely  upon  cuflom  ;  cor* 
roborated  in  the  latter  inftance  by  act  of  parliament,  ratifying  thofe 
charters  which  confirm  the  cuftomary  law  of  the  univerfities. 


* 


Burn's  eccl.  law,  prcf.  viii.  and  confirmed  by  i  Eliz.  c.  I. 

Statute  25  Hen.  VIII.   0.19;   revived         z  Stra.  1057. 

L  2  The 


84  Of    the    L  A  w  s  I  N  T  R  o  D. 

The  more  minute  consideration  of  thefe  will  fall  properly  under 
that  part  of  thefe  commentaries  which  treats  of  the  jurifdiction 
of  courts.  It  will  fuffice  at  prefent  to  remark  a  few  particulars 
relative  to  them  all,  which  may  ferve  to  inculcate  more  ftrongly 
the  doctrine  laid  down  concerning  them a. 

r.  AND,  firft,  the  courts  of  common  law  have  the  fuperin- 
tendency  over  thefe  courts  j  to  keep  them  within  their  jurifdic- 
tions,  to  determine  wherein  they  exceed  them,  to  reftrain  and 
prohibit  fuch  excefs,  and  (in  cafe  of  contumacy)  to  punifh  the 
officer  who  executes,  and  in  fome  cafes  the  judge  who  enforces, 
the  fentence  fo  declared  to  be  illegal. 

2.  THE  common  law  has  referved  to  itfelf  the  expofition  of 
all  fuch  acts  of  parliament,  as  concern  either  the  extent  of  thefe 
courts  or  the  matters  depending  before  them.    And  therefore  if 
thefe  courts  either  refufe   ta  allow  thefe  acts  of  parliament,  or 
will  expound  them  in  any  other  fenfe  than  what  the  common 
law  puts  upon  them,  the  king's  courts  at  Weflminfter  will  grant 
prohibitions  to  reflrain  and  control  them. 

3.  AN  appeal  lies  from  all  thefe  courts  to  the  king,  in  the  laii 
refort;    which  proves  that  the  jurifdiction  exercifed  in  them  is 
derived  from  the  crown  of  England,  and  not  from  any  foreign 
potentate,  or  intrinfic  authority  of  their  own.  — And,  from  thefe 
three  ftrong  marks  and  enfigns  of  fuperiority,  it  appears  beyond 
a  doubt  that  the  civil  and  canon  laws,  though  admitted  in  fome 
cafes  by  cuftom  in  fome  courts,  are  only  fubordinate  and  leges 

fub  graviori  lege ;  and  that,  thus  admitted,  retrained,  altered, 
new-modelled,  and  amended,  they  are  by  no  means  with  us  a 
diftindt  independent  fpecies  of  laws,  but  are  inferior  branches  of 
the  cuftomary  or  unwritten  laws  of  England,  properly  called,  the 
king's  ecclefiaftical,  the  king's  military,  the  king's  maritime,  or 
the  king's  academical,  laws. 

1  Ha!e  Hift.  c.  z. 

LE  T 


§.3.  of     E  N  G  L  A  N  D.  85 

LET  us  next  proceed  to  the  leges  feriptae,  the  written  laws 
of  the  kingdom,  which  are  ftatutes,  acts,  or  edicts,  made  by  the 
king's  majefty  by  and  with  the  advice  and  conient  of  the  lords 
fpiritual  and  temporal  and  commons  in  parliament  aiTembled b. 
The  oldeft  of  thefe  now  extant,  and  printed  in  our  flatute  books,, 
is  the  famous  magna  carta,  as  confirmed  in  parliament  9  Hen.  Ill : 
though  doubtlefs  there  were  many  adls  before  that  time,  the  re- 
cords of  which  are  now  loft,  and  the  determinations  of  them 
perhaps  at  prefent  currently  received  for  the  maxims  of  the  old 
common  law. 

THE  manner  of  making  thefe  flatutes  will  be  better  confidered 
hereafter,  when  we  examine  the  constitution  of  parliaments.  At 
prefent  we  will  only  take  notice  of  the  different  kinds  of  flatutes  ; 
and  of  fome  general  rules  with  regard  to  their  conduction0. 

FIKST,  as  to  their  feveral  kinds.  Statutes  are  either  general 
er  fpecial,  public  or  private.  A  general  or  public  act  is  an  uni- 

b  8  Rep.  20.  rior  fedlions  alfb  :  in  imitation  of  all  which 

c   The  method  of   citing    thefe    acts   of  we  ftill  call  fome  of  our  old  ftatutes  by  their 

parliament  is  various.    Many  of  our  antient  initial  words,  as  the  ftatute  of  quia  emptores, 

flatutes   are    called  after  the  name  of  the  and  that  of  circumfptHe  agatis.    But  the  moft 

place,  where  the  parliament  was  held  that  ufual   method  of  citing    them,     efpecially 

made  them  ;  as  the  flatutes  of  Merton  and  fince  the  time  of  Edward  the  fecond,  is  by 

Marlbridge,.  of  Weftminfter,  Glocefter,  and  naming    the  year  of  the    king's   reign   in 

Winchefter.     Others  are  denominated  en-  which  the  ftatute  was  made,  together  with 

tirely  from  their  fubjecl;  as  the  ftatutes  of  the  chapter,  or  particular  aft,  according  to 

Wales   and  Ireland,    the  articuli  cleri,    and  it's  numeral   order  ;     as,    9  Geo.  II.    c.  4. 

the    prerogati<va    regis.      Some    are    diftin-  For  all  the  afls  or  one  feffion  of  parliament 

guifhed  by  their  initial  words ;  a  method  of  taken  together  make  properly  but  one  fta- 

citing  very  antient,  being  ufed  by  the  Jews  tute  ;  and  therefore  when  two  feffions  have 

in   denominating  the  books  of  the  penta-  been  held  in  one  year ;  we  ufually  mention 

tcuch ;    by  the   chriflian  church  in  diftin-  flat,  l .  or  2.    Thus  the  bill  of  rights  is  ci- 

guifhing  their  hymns  and  divine  offices ;  by  ted,  as-iW.   &  M.    ft.  2.    c.  2.    fignifying 

the    Romanifls    in    defcribing    their    papal  that  it  is  the  fecond  chapter  or  aft,  of  the 

bulles  ;  and  in  fhort  by  the  whole  body  of  fecond  ftatute  or  the  laws  made  in  the  fe- 

antient  civilians  andcanonifts,  among  whom  cond  felTions  of  parliament,  held  in  the  fir  (I 

this  method  of  citation  generally  prevailed,  year  of  king  Wiiliam  and  queen  Mary. 
not  only  with  regard  to  chapters,,  but  infer 

verfal 


86  Of   the    LAWS  IN  TROD. 

verfal  rule,  that  regards  the  whole  community ;  and  of  this  the 
courts  of  law  are  bound  to  take  notice  judicially  and  ex  officio ; 
without  the  ftatute  being  particularly  pleaded,  or  formally  fet 
forth  by  the  party  who  claims  an  advantage  under  it.  Special  or 
private  acts  are  rather  exceptions  than  rules,  being  thofe  which 
only  operate  upon  particular  perfons,  and  private  concerns ;  fuch 
as  the  Romans  intitledfenatus-decrefa,  in  contradistinction  to  the 
fenatus-confulta,  which  regarded  the  whole  community  d :  and  of 
thefe  the  judges  are  not  bound  to  take  notice,  unlefs  they  be 
formally  fliewn  and  pleaded.  Thus,  to  mew  the  diftinction,  the 
ftatute  i^Eliz.  c.  10.  to  prevent  fpiritual  perfons  from  making 
leafes  for  longer  terms  than  twenty  one  years,  or  three  lives,  is 
a  public  act  ;  it  being  a  rule  prefcribed  to  the  whole  body  of  fpi- 
ritual perfons  in  the  nation  :  but  an  act,  to  enable  the  biihop  of 
Cheiler  to  make  a  leafe  to  A.  B.  for  lixty  years,  is  an  exception 
to  this  rule  -,  it  concerns  only  the  parties  and  the  bifhop's  fuc- 
-ceflbrs  -,  and  is  therefore  a  private  act. 

STATUTES  alfo  are  either  declaratory  of  the  common  law, 
or  remedial  of  fome  defects  therein.  Declaratory,  where  the  old 
cuftom  of  the  kingdom  is  almoft  fallen  into  difufe,  or  become 
difputable ;  in  which  cafe  the  parliament  has  thought  proper,  in 
perpetuum  rei  tejlirnonium,  and  for  avoiding  all  doubts  and  difficul- 
ties, to  declare  what  the  common  law  is  and  ever  has  been. 
Thus  the  ftatute  of  treafons,  25  Edw.  III.  cap.  2.  doth  not  make 
any  new  fpecies  of  treafons ;  but  only,  for  the  benefit  of  the 
fubject,  declares  and  enumerates  thofe  feveral  kinds  of  offence, 
which  before  were  trealbn  at  the  common  law.  Remedial  fla- 
tutes  are  thofe  which  are  made  to  fupply  fuch  defects,  and 
abridge  fuch  fuperfluities,  in  the  common  law,  as  arife  either 
from  the  general  imperfection  of  all  human  laws,  from  change 
of  time  and  circumftances,  from  the  miftakes  and  unadvifed. 
determinations  of  unlearned  judges,  or  from  any  other  caufe 
whatfoever.  And  this  being  done,  either  by  enlarging  the  com- 
mon law  where  it  was  too  narrow  and  circumfcribed,  or  by  re- 

d  Gravin.  Orig.  I.   §.24. 

{training 


§,  3.  of     E  N  G  L  A  N  D,  87 

draining  it  where  it  was  too  lax  and  luxuriant,  hath  occafion- 
ed  another  fubordinate  divifion  of  remedial  acts  of  parliament 
into  enlarging  and  retraining  ftatutes.  To  inftance  again  in  the 
cafe  of  treafon.  Clipping  the  current  coin  of  the  kingdom  was 
an  offence  not  fufficiently  guarded  againfl  by  the  common  law  : 
therefore  it  was  thought  expedient  by  ftatute  5  Eliz.  c.  1 1 .'  to 
make  it  high  treafon,  which  it  was  not  at -the  common  law  :  fo 
that  this  was  an  enlarging  ftatute.  At  common  law  alfo  fpiritual 
corporations  might  leafe  out  their  eftates  for  any  term  of  years, 
till  prevented  by  the  ftatute  1 3  Eliz.  before-mentioned  :  this  was 
therefore  a  retraining  ftatute. 

i 

SECONDLY,  the  rules  to  be  obferved  with  regard  to  the  con- 
ftruction  of  ftatutes  are  principally  thefe  which  follow. 

i.,  THERE  are  three  points  to  be  confidered  in  the  conftruc- 
tion  of  all  remedial  ftatutes  ;  the  old  law,  the  mifchief,  and  the 
remedy  :  that  is,  how  the  common  law  flood  at  the  making  o£ 
the  acij  what  the  mifchief  was,  for  which  the  common  lav/  did 
not  provide ;  and  what  remedy  the  parliament  hath  provided  to 
cure  this  mifchief.  And  it  is  the  bufinefs  of  the  judges  fo  to,, 
conftrue  the  adl,  as  to  fupprefs  the  mifchief  and  advance  the  re- 
medy6. Let  us  inftance  again  in  the  fame  restraining  ftatute  of 
the  1 3  Eliz.  By  the  common  law  ecclefiaftical  corporations  might 
let  as  long  leafes  as  they  thought  proper :  the  mifchief  was,  that 
they  let  long  and  unreafonable  leafes,  to  the  impoverishment  of 
their  fucceflbrs  :  the  remedy  applied  by  the  ftatute  was  by  making 
void  all  leafes  by  ecclefiaftical  bodies  for  longer  terms  than  three 
lives  or  twenty  one  years.  Now  in  the  conftruclion  of  this  fta- 
tute it  is  held,  that  leafes,  though  for  a  longer  term,  if  made  by 
a  bifhop,  are  not  void  during  the  bifhop's  life ;  or,  if  made  by  a 
dean  and  chapter,  they  are  not  void  during  the  life  of  the  dean  : 
for  the  adl  was  made  for  the  -benefit  and  protection  of  the  fuc- 
cefibr f.  The  mifchief  is  therefore  fufficiently  fupprefled  by  va- 
cating them  after  the  death  of  the  grantors  -,  but  the  leafes,  du- 

e  3  Rep.  7.    Co.  Litt.  n.  42.  f  Co.  Litt.  45.    3  Rep.  60. 

ring 


8-8  Of   the    L  A  w  s  I  N  T  R  o  D. 

ring  their  lives,  being  not  within  the  mifchief,  are  not  within 
the  remedy. 

2.  A   STATUTE,    which  treats  of  things  or  perfons  of  an 
inferior  rank,  cannot  by  any  general  words  be  extended  to  thofe 
of  a  fuperior.     So  a  ftatute,   treating  of  "  deans,    prebendaries, 
"  parfons,  vicars,  and  others  having  fpiritual  promotion,"  is  held 
not  to  extend  to  bifhops,  though  they  have  fpiritual  promotion ; 
deans  being  the  higheft  perfons  named,  and  biiliops  being  of  a 
ftill  higher  order  6. 

3.  PENAL  ftatutes  muft  be  conftrued  ftrictly.  Thus  the  ftatute 
i  Edw.VI.  c.  12.  having  enacted  that  thofe  who  are  convicted  of 
ftealing  horfes  mould  not  have  the  benefit  of  clergy,  the  judges 
conceived  that  this  did  not  extend  to  him  that  mould  fteal  but  one 
horfe,  and  therefore  procured  a  new  act  for  that  purpofe  in  the 
following   year h.     And,  to  come  nearer  our  own  times,  by  the 
ftatute  i4Geo.  II.  c.  6.   ftealing  fheep,  or  other  cattle,  was  made 
felony  without  benefit  of  clergy.    But  thefe  general  words,  "  or 
"  other  cattle,"  being  looked  upon  as  much  too  loofe  to  create  a 
capital  offence,   the  act  was  held  to  extend  to  nothing  but  mere 
meep.  And  therefore,  in  the  next  fefTions,  it  was  found  neceffary 
to  make  another  ftatute,  15  Geo.  II.  c.  34.  extending  the  former 
to  bulls,  cows,  oxen,  fleers,  bullocks,  heifers,  calves,  and  lambs, 
by  name. 

4.  STATUTES  againft  frauds  are  to  be  liberally  and  benefi- 
cial'y  expounded.   This  may  feem  a  contradiction  to  the  laft  rule; 
moft  ftatutes  againft  frauds  being  in  their  confequences  penal. 
But  this  difference  is  here  to  be  taken  :    where  the  ftatute  acts 
upon  the  offender,  and  inflicts  a  penalty,  as  the  pillory  or  a  fine, 
it  is  then  to  be  taken  ftrictly  :   but  when  the  ftatute  acts  upon  the 
offence,  by  fetting  afide  the  fraudulent  tranfaction,  here  it  is  to 
be  conftrued  liberally.     Upon  this  footing  the  ftatute  of  13  Eliz. 
c.  5.   which  avoids  all  gifts  of  goods,  &c,  made  to  defraud  cre- 
ss 2  Rep.  46.  h  z  &  3  Edw.VI.  c.  33.  Bac.  Elem.  c.  i  z. 

ditors 


§.3.  c/"    ENGLAND. 

ditors  and  others,  was  held  to  extend  by  the  general  words  to  a 
gift  made  to  defraud  the  queen  of  a  forfeiture1. 

5.  O  N  E  part  of  a  ilatute  muil  be  fo  conilrued  by  another, 
that  the  whole  may  (if  poflible)  iland  :  lit  res  magis  valeat,  quam 
pereat.    As  if  land  be  veiled  in  the  king  and  his  heirs  by  adl  of 
parliament,  faving  the  right  of  A ;    and  A  has  at  that  time  a 
leafe  of  it  for  three  years :    here  A  mall  hold  it  for  his  term  of 
three  years,  and  afterwards  it  mail  go  to  the  king.    For  this  in- 
terpretation furniihes  matter  for  every  claufe  of  the  flatute  to 
work  and  operate  upon.     But 

6.  A  SAVI  N  G,  totally  repugnant  to  the  body  of  the  adt,  is 
void.     If  therefore  an  act  of  parliament  veils  land  in  the  king 
and  his  heirs,  faving  the  right  of  all  perfons  whatfoever ;  or  veils 
the  land  of  A  in  the  king,  faving  the  right  of  A  :    in  either  of 
thefe  cafes  the  faving  is  totally  repugnant  to  the  body  of  the  fla- 
tute, and  (if  good)  would  render  the  ilatute  of  no  effect  or  ope- 
ration ;  and  therefore  the  faving  is  void,  and  the  land  veils  abfo- 
lutely  in  the  king  k. 

7.  WH  ERE  the  common  law  and  a  ilatute  differ,  the  com- 
mon law  gives  place  to  the  ilatute ;  and  an  old  ilatute  gives  place 
to  a  new  one.    And  this  upon  the  general  principle  laid  down  in 
the  lail  fection,  that  "  leges  pofteriores  priores  contrarias  abrogant." 
But  this  is  to  be  underilood,  only  when  the  latter  ilatute  is 
couched  in  negative  terms,  or  by  it's  matter  neceflarily  implies  a 
negative.    As  if  a  former  adl  fays,  that  a  juror  upon  fuch  a  trial 
mall  have  twenty  pounds  a  year  j    and  a  new  ftatute  comes  and 
fays,  he  mall  have  twenty  marks  :  here  the  latter  ilatute,  though 
it  does  not  exprefs,  yet  neceffarily  implies  a  negative,  and  vir- 
tually repeals  the  former.    For  if  twenty  marks  be  made  qualifi- 
cation fufficient,  the  former  ilatute  which  requires  twenty  pounds 
is  at  an  end '.    But  if  both  acts  be  merely  affirmative,  and  the 

j  3  Rep.  82.  i  Jenk.  Cent.  2.73. 

k  i  Rep.  47. 

M  fubftance 


Of  the  L  A  w  s  I  N  T  R  o  D. 

fubftance  fuch  that  both  may  ftand  together,  here  the  latter  does 
not  repeal  the  former,  but  they  mail  both  have  a  concurrent  ef- 
ficacy. If  by  a  former  law  an  offence  be  indictable  at  the  quar- 
ter feffions,  and  a  latter  law  makes  the  fame  offence  indictable  at 
the  affifes  j  here  the  jurifdiction  of  the  feffions  is  not  taken  away, 
but  both  have  a  concurrent  jurifdiction,  and  the  offender  may  be 
profecuted  at  either ;  unlefs  the  new  ftatute  fubjoins  exprefs  ne- 
gative words,  as,  that  the  offence  mail  be  indictable  at  the  affifes,. 
and  not  elfeivhere  m. 

8.  IF  a  ftatute,  that  repeals  another,  is  itfelf  repealed  after- 
wards,  the  firft  ftatute  is  hereby  revived,  without  any  formal 
words  for  that  purpofe.  So  when  the  ftatutes  of  26  and  35  Hen. 
VIII,  declaring  the  king  to  be  the  fupreme  head  of  the  church, 
were  repealed  by  a  ftatute  i  6c  2  Philip  and  Mary,  and  this  latter 
ftatute  was  afterwards  repealed  by  an  act  of  i  Eliz.  there  needed 
not  any  exprefs  words  of  revival  in  queen  Elizabeth's  ftatute, 
but  thefe  acts  of  king  Henry  were  impliedly  and  virtually  re- 
vived ". 

9.  ACTS  of  parliament  derogatory  from  the  power  of  fubfe- 
quent  parliaments  bind  not.      So  the  ftatute  u  Hen.  VII.  c.  i. 
which  directs,  that  no  perfon  for  affifting  a  king  de  fatto  fhall  be 
attainted  of  treafon  by  act  of  parliament  or  otherwife,  is  held  to 
be  good  only  as  to  common  profecutions  for  high  treafon ;    but 
will  not  reftrain  or  clog  any  parliamentary  attainder  °.    Becaufe 
the  legislature,  being  in  truth  the  fovereign  power,  is  always  of 
equal,  always  of  abfolute  authority  :  it  acknowleges  no  fuperior 
upon  earth,  which  the  prior  legiflature  muft  have  been,  if  it's 
ordinances  could  bind  the  prefent  parliament.  And  upon  the  fame 
principle  Cicero,  in  his  letters  to  Atticus,  treats  with  a  proper 
contempt  thefe  reftraining  claufes  which  endeavour  to  tie  up  the 
hands  of  Succeeding  legislatures.    "  When  you  repeal  the  law  it- 

*  11  Rep.  63.  °  ilnft.  43. 

«  felf, 


§.3.  Of     E  N  G  L  A  N  D. 

'« felf,    fays  he,    you  at  the  fame  time  repeal  the  prohibitory 
"  claufe,  which  guards  againft  fuch  repeal p." 

10.  LASTLY,  acts  of  parliament  that  are  impoflible  to  be 
performed  are  of  no  validity ;  and  if  there  arife  out  of  them  col- 
laterally any  abfurd   confequences,    manifeflly   contradictory  to 
common  reafon,  they  are,  with  regard  to  thole  collateral  confe- 
quences, void.  I  lay  down  the  rule  with  thefe  restrictions  j  though 
I  know  it  is  generally  laid  down  more  largely,  that  acts  of  par- 
liament contrary  to  reafon  are  void.    But  if  the  parliament  will 
pofitively  enact  a  thing  to  be  done  which  is  unreafonable,  I  know 
of  no  power  that  can  control  it :  and  the  examples  ufually  al- 
leged in  fupport  of  this  fenfe  of  the  rule  do  none  of  them  prove, 
that  where  the  main    object  of  a  ftatute    is  unreafonable   the 
judges  are  at  liberty  to  reject  it  -,  for  that  were  to  fet  the  judicial 
power  above  that  of  the  legiflature,  which  would  be  fubvernve 
of  all  government.     But  where  fome  collateral  matter  arifes  out 
of  the  general  words,  and  happens  to  be  unreafonable ;   there 
the  judges  are  in  decency  to  conclude  that  this  confequence  was 
not  forefeen  by  the  parliament,  and  therefore  they  are  at  liberty 
to  expound  the  ftatute  by  equity,  and  only  quoad  hoc  difregard  it. 
Thus  if  an  act  of  parliament  gives  a  man  power  to  try  all-caufes, 
that  arife  within  his  manor  of  Dale  -,  yet,  if  a  caufe  mould  arife 
in  which  he  himfelf  is  party,  the  act  is  conftrued  not  to  extend 
to  that,  becaufe  it  is  unreafonable  that  any  man  mould  deter- 
mine his  own  quarrel q.    But,  if  we  could  conceive  it  poffible  for 
the  parliament  to  enact,  that  he  fhould  try  as  well  his  own  caufes 
as  thofe  of  other  perfons,  there  is  no  court  that  has  power  to  de- 
feat the  intent  of  the  legiflature,  when  couched  in  fuch  evident 
and  exprefs  words,  as  leave  no  doubt  whether  it  was  the  intent  of 
the  legiflature  or  no. 

TH  E  s  E  are  the  feveral  grounds  of  the  laws  of  England  :  over 
and  above  which,  equity  is  alfo  frequently  called  in  to  affift,  to 

I"  Cum  lex  alrogatur,  illuii  if/urn  abrcgatur,          1   8  Rep.  1 1 8. 
fxo  nun  earn  abrogari  eferteat.  I.  3.  ep,  23. 

M  2  moderate, 


92  Of    the    LAWS,    &c.  IN  TROD. 

moderate,  and  to  explain  them.  What  equity  is,  and  how  impof- 
lible  in  it's  very  eflence  to  be  reduced  to  flated  rules,  hath  been 
fliewn  in  the  preceding  fection.  I  {hall  therefore  only  add,  that 
there  are  courts  of  this  kind  eflablifhed  for  the  benefit  of  the 
fubject,  to  correct  and  foften  the  rigor  of  the  law,  when  through 
it's  generality  it  bears  too  hard  in  particular  cafes ;  to  detect  and 
punifh  latent  frauds,  which  the  law  is  not  minute  enough  to 
reach  ;  to  enforce  the  execution  of  fuch  matters  of  truft  and 
confidence,  as  are  binding  in  confcience,  though  perhaps  not 
ftridtly  legal  •>  to  deliver  from  fuch  dangers  as  are  owing  to  mi£- 
fortune  or  overfight ;  and,  in  fhort,  to  relieve  in  all  fuch  cafes  as 
are,  bona  Jide,  objects  of  relief.  This  is  the  bufmefs  of  our 
courts  of  equity,  which  however  are  only  converfant.  in  matters 
of  property.  For  the  freedom  of  our  constitution  will  not  per- 
mit, that  in  criminal  cafes  a  power  mould  be  lodged  in  any  judge, 
to  conftrue  the  law  otherwife  than  according  to  the  letter.  This 
caution,  while  it  admirably  protects  the  public  liberty,  can  never 
bear  hard  upon  individuals.  A  man  cannot  fuffer  more  punifh- 
ment  than  the  law  affigns,  but  he  may  fuffer  lefs.  The  laws  can^ 
not  be  flrained  by  partiality  to  inflict  a  penalty  beyond  what  the 
letter  will  warrant ;  but,  in  cafes  where  the  letter  induces  any 
apparent  hardship,  the  crown  has  the  power  to  pardon. 


C  93   J 


SECTION     THE     FOURTH, 

OF   THE   COUNTRIES    SUBJECT    TO    THE. 
LAWS    OE    ENGLAND. 


f  |  ^HE  kingdom  of  England,  over  which  our  municipal  laws 
JL  have  jurifdidlion,  includes  not,  by  the  common  law,  ei- 
ther Wales,  Scotland,  or  Ireland,  or  any  other  part  of  the  king's 
dominions,  except  the  territory  of  England  only.  And  yet  the 
civil  laws  and  local  cuftoms  of  this  territory  do  now  obtain,  in 
part  or  in  all,  with  more  or  lefs  reftridlions,  in  thefe  and  many 
other  adjacent  countries;  of  which  it  will  be  proper  firfh  to  take 
a  review,  before  we  confider  the  kingdom  of  England  itfelf,  the 
original  and  proper  fubject  of  thefe  laws.. 

WALES  had  continued  independent  of  England,  unconquered 
and  uncultivated,  in  the  primitive  paftoral  flate  which  Caelar  and 
Tacitus  afcribe  to  Britain  in  general,  for  many  centuries ;  even 
from  the  time  of  the  hoftile  invaiions  of  the  Saxons,  when  the 
antient  and  chriflian  inhabitants  of  the  ifland  retired  to  thofe  na- 
tural intrenchments,  for  protection  from  their  pagan  vifitants.  But 
when  thefe  invaders  themfelves  were  converted  to  chriftianity, 
and  fettled  into  regular  and  potent  governments,  this  retreat  of 
the  antient  Britons  grew  every  day  narrower  ;  they  were  overrun 
by  little  and  little,  gradually  driven  from  one  faftnefs  to  another, 
and  by  repeated  loffes  abridged  of  their  wild  independence.  Very 
early  in  our  hiftory  we  find  their  princes  doing  homage  to  the 
crown  of  England ;  till  at  length  in  the  reign  of  Edward  the 
firfl,  who  may  juftly  be  fliled  the  conqueror  of  Wales,  the  line 

of 


94  Of  the  COUNTRIES  fubjeEl  to       INTROD. 

of  their  antient  princes  was  abolifhed,  and  the  king  of  England's 
eldeft  fon  became,  as  a  matter  of  courfe,  their  titular  prince  : 
the  territory  of  Wales  being  then  entirely  re-annexed  (by  a  kind 
of  feodal  resumption)  to  the  dominion  of  the  crown  of  England3; 
or,  as  the  flatute  of  Rutland  b  expreffes  it,  "  terra  Walliae  cum 
"  incolis  fuisj  prius  regi  jure  feodali  fubjefta,  (of  which  homage 
"was  the  iign)  jam  in  proprietatis  dominium  totaliter  et  cum  inte- 
"  gritate  converfa  eji,  et  coronae  regni  Angliae  tanquam  pars  corpo- 
"  ris  ejufdem  annexa  et  unita"  By  the  ftatute  alfo  of  Wales0  very 
material  alterations  were  made  in  divers  parts  of  their  laws,  fo  as 
to  reduce  them  nearer  to  the  Englifh  ftandard,  efpecially  in  the 
forms  of  their  judicial  proceedings  :  but  they  ftill  retained  very 
much  of  their  original  polity,  particularly  their  rule  of  inherit- 
ance, viz.  that  their  lands  were  divided  equally  among  all  the 
iffue  male,  and  did  not  defcend  to  the  eldeft  fon  alone.  By  other 
fubfequent  ftatutes  their  provincial  immunities  were  ftill  farther 
abridged  :  but  the  finishing  ftroke  to  their  independency,  was 
given  by  the  ftatute  27  Hen.  VIII.  c.  26.  which  at  the  fame  time 
gave  the  utmoft  advancement  to  their  civil  profperity,  by  admit- 
ting them  to  a  thorough  communication  of  laws  with  the  fub- 
jecls  of  England.  Thus  were  this  brave  people  gradually  con- 
quered into  the  enjoyment  of  true  liberty  ;  being  infenfibly  put 
upon  the  fame  footing,  and  made  fellow-citizens  with  their  con- 
querors. A  generous  method  of  triumph,  which  the  republic  of 
Rome  practiied  with  great  fuccefs  ;  till  me  reduced  all  Italy  to 
her  obedience,  by  admitting  the  vanquifhed  ftates  to  partake  of 
.the  Roman  privileges. 

I  T  is  enadled  by  this  ftatHte  27  Hen.VIH,  i.  That  the  do- 
minion of  Wales  mall  be  for  ever  united  to  the  kingdom  of 
England.  2.  That  all  Welchmen  born  mall  have  the  fame  li- 
berties as  other  the  king's  fubjec~ls.  3.  That  lands  in  Wales  fliall 
be  inheritable  according  to  the  Englirti  tenures  and  rules  of  de- 
fcent.  4.  That  the  laws  of  England,  and  no  other,  mail  be  ufed 

*  Vaugh.  400.  c  i2Edw.  I. 

b   10  Ed w.I. 

in 


§.  4»  the    L  A  w  s    of   E  N  G  L  A  N  D. 

in  Wales  :  befides  many  other  regulations  of  the  police  of  this 
principality.  And  the  ftatute  34  6c  35  Hen. VIII.  c.  26.  con- 
firms the  fame,  adds  farther  regulations,  divides  it  into  twelve 
fhires,  and,  in  mort,  reduces  it  into  the  fame  order  in  which  it 
{lands  at  this  day ;  differing  from  the  kingdom  of  England  in 
only  a  few  particulars,  and  thofe  too  of  the  nature  of  privileges,, 
(fuch  as  having  courts  within  itfelf,  independent  of  the  procefs  of 
Weftminfter  hall)  and  fome  other  immaterial  peculiarities,  hardly 
more  than  are  to  be  found  in  many  counties  of  England  itfelf. 

THE  kingdom  of  Scotland,  notwithftanding  the  union  of  the 
crowns  on  the  accemon  of  their  king  James  VI  to  that  of  Eng- 
land, continued  an  entirely  feparate  and  diftinct  kingdom  for 
above  a  century,  though  an  union  had  been  long  projected  ; 
which  was  judged  to  be  the  more  eafy  to  be  done,  as  both  king- 
doms were  antiently  under  the  fame  government,  and  ftill  retained, 
a  very  great  refemblance,  though  far  from  an  identity,  in  their 
laws.  By  an  a6t  of  parliament  I  Jac.  I.  c.  I.  it  is  declared,  that, 
thefe  two,  mighty,  famous,  and  antient  kingdoms  were  formerly 
one.  And  fir  Edward  Coke  obfervesd,  how  marvellous  a  confor- 
mity there  was,  not  only  in  the  religion  and  language  of  the  two 
nations,  but  alfo  in  their  antient  laws,  the  defcent  of  the  crown, 
their  parliaments,  their  titles  of  nobility,  their  officers  of  ilate 
and  of  juftice,  their  writs,  their  cuftoms,  and  even  the  language 
of  their  laws.  Upon  which  account  he  fuppofes  the  common  law 
of  each  to  have  been  originally  the  fame,  efpecially  as  their  moft 
antient  and  authentic  book,  called  regiarn  majejlatem  and  contain- 
ing the  rules  of  their  antient  common  law,  is  extremely  fimilar  to 
that  of  Glanvil,  which  contains  the  principles  of  ours,  as  it  flood 
in  the  reign  of  Henry  II.  And  the  many  diverfities,  fubfifting 
between  the  two  laws  at  prefent,  may  be  well  enough  accounted 
for,  from  a  diverfity  of  practice  in  two  large  and  uncommunica- 
ting  jurifdidlions,  and  from  the  acts  of  two  diftincT:  and  indepen- 
dent parliaments,  which  have  in  many  points  altered  and  abro- 
gated the  old  common  law  of  both  kingdoms. 

11  4lnft.  34.5. 

How- 


96  Of  the  COUNT RIE  s  fubje&  to       INTROD. 

HOWEVER,  fir  Edward  Coke,  and  the  politicians  of  that  time, 
conceived  great  difficulties  in  carrying  on  the  projected  union  : 
but  thefe  were  at  length  overcome,  and  the  great  work  was  hap- 
pily effected  in  1707,  5  Anne;  when  twenty  five  articles  of 
union  were  agreed  to  by  the  parliaments  of  both  nations  :  the 
purport  of  the  moil  confiderable  being  as  follows ; 

1.  THAT  on  the  firft  of  May  1707,  and  for  ever  after,  the 
kingdoms  of  England  and   Scotland  mall  be  united  into  one 
kingdom,  by  the  name  of  Great  Britain. 

2.  TH  E  fucceffioa  to  the  monarchy  of  Great  Britain  mail  be 
the  fame  as  was  before  fettled  with  regard  to  that  of  England. 

3.  THE  united  kingdom  fhall  be  reprefented  by  one  parlia- 
ment. 

4.  TH  ERE  mail  be  a  communication  of  all  rights  and  privi- 
leges between  the  fubjects  of  both  kingdoms,  except  where  it  is 
otherwife  agreed. 

9.  WHEN  England  raifes  2,000,0007.  by  a  land  tax,  Scot- 
land mall  raife  48,  ooo  /. 

16,  17.  THE  ftandards  of  the  coin,  of  weights,  and  of  mea- 
fures,  {hall  be  reduced  to  thofe  of  England,  throughout  the 
united  kingdoms. 

1 8.  THE  laws  relating  to  trade,  cuftoms,  and  the  excife, 
{Jiall  be  the  fame  in  Scotland  as  in  England.  But  all  the  other 
laws  of  Scotland  fhall  remain  in  force  ;  but  alterable  by  the  par- 
liament of  Great  Britain.  Yet  with  this  caution  :  that  laws  re- 
lating to  public  policy  are  alterable  at  the  difcretion  of  the  par- 
liament ;  laws  relating  to  private  right  are  not  to  be  altered  but 
for  the  evident  utility  of  the  people  of  Scotland. 

22.  SIXTEEN 


§,  4«  the  L  A  w  s  of  E  N  G  L  A  N  D.  97 

22.  SIXTEEN  peers  are  to  be  chofen  to  reprefent  the  peer- 
age of  Scotland  in  parliament,  and  forty  five  members  to  lit  in 
the  houfe  of  commons. 

23.  THE  fixteen  peers  of  Scotland  fhall  have  all  privileges  of 
parliament :    and  all  peers  of  Scotland  {hall  be  peers  of  Great 
Britain,  and  rank  next  after  thofe  of  the  fame  degree  at  the  time 
of  the  union,  and  mall  have  all  privileges  of  peers,  except  fitting 
in  the  houfe  of  lords  and  voting  on  the  trial  of  a  peer. 

THESE  are  the  principal  of  the  twenty  five  articles  of  union, 
which  are  ratified  and  confirmed  by  ftatute  5  Ann.  c.  8.  in  which 
flatute  there  are  alfo  two  acts  of  parliament  recited ;  the  one  of 
Scotland,  whereby  the  church  of  Scotland,  and  alfo  the  four 
univerfities  of  that  kingdom,  are  eftablifhed  for  ever,  and  all 
fucceeding  fovereigns  are  to  take  an  oath  inviolably  to  maintain 
the  fame ;  the  other  of  England,  5  Ann.  c.  6.  whereby  the  acts  of 
uniformity  of  ^Eliz.  and  13 Car.  II.  (except  as  the  fame  had 
been  altered  by  parliament  at  that  time)  and  all  other  acts  then  in 
force  for  the  prefervation  of  the  church  of  England,  are  declared 
perpetual ;  and  it  is  ftipulated,  that  every  fubfequent  king  and 
queen  mall  take  an  oath  inviolably  to  maintain  the  fame  within 
England,  Ireland,  Wales,  and  the  town  of  Berwick  upon  Tweed, 
And  it  is  enacted,  that  thefe  two  acts  "mail  for  ever  be  obferved 
"  as  fundamental  and  eflential  conditions  of  the  union." 

UPON  thefe  articles,  and  act  of  union,  it  is  to  be  obferved, 
I.  That  the  two  kingdoms  are  now  fo  infeparably  united,  that 
nothing  can  ever  difunite  them  again;  unlefs  perhaps  an  infringe- 
ment of  thofe  points  which,  when  they  were  feparate  and  inde- 
pendent nations,  it  was  mutually  fHpulated  mould  be  "  funda- 
"  mental  and  effential  conditions  of  the  union6."  2.  That  what- 

e  It  may  juftly  be  doubted,  whether  even  mod  preffing  neceflity)  would  confequen- 
fuch  an  infringement  (though  a  manifeft  tially  diflblve  the  union:  for  the  bare  idea 
breach  of  good  faith,  unlefs  done  upon  the  of  a  Hate,  without  a  power  fomewhere  veft- 

N  ed 


Of  the  COUNTRIES  fubjett  to      I N T R o D. 

ever  elfe  may  be  deemed  "  fundamental  and  effential  conditions," 
the  prefervation  of  the  two  churches,  of  England  and  Scotland,  in 
the  fame  fcate  that  they  were  in  at  the  time  of  the  union,  and  the 
maintenance  of  the  adts  of  uniformity  which  eftablifh  our  com- 
mon prayer,  are  expreffly  declared  fo  to  be.  3.  That  therefore 
any  alteration  in  the  conltitutions  of  either  of  thofe  churches,  or 
in  the  liturgy  of  the  church  of  England,  would  be  an  infringe- 
ment of  thefe  "  fundamental  and  effential  conditions,"  and  greatly 
endanger  the  union.  4.  That  the  municipal  laws  of  Scotland  are 
ordained  to  be  ftill  obferved  in  that  part  of  the  ifland,  unlefs  al- 
tered by  parliament ;  and,  as  the  parliament  has  not  yet  thought 
proper,  except  in  a  few  inftances,  to  alter  them,  they  ftill  (with 
regard  to  the  particulars  unaltered)  continue  in  full  force.  Where- 
fore the  municipal  or  common  laws  of  England  are,  generally 
fpeaking,  of  no  force  or  validity  in  Scotland;  and,  of  confe- 
quence,  in  the  enfuing  commentaries,  we  mail  have  very  little 
occafion  to  mention,  any  farther  than  fometimes  by  way  of  illuf- 
tration,  the  municipal  laws  of  that  part  of  the  united  kingdoms. 

THE  town  of  Berwick  upon  Tweed  was  originally  part  of  the 
kingdom  of  Scotland ;  and,  as  fuch,  was  for  a  time  reduced  by 
king  Edward  I  into  die  poffefllon  of  the  crown  of  England  :  and, 
during  fuch  it's  fubjection,  it  received  from  that  prince  a  charter, 
which  (after  it's  fubfequent  ceflion  by  Edward  Balliol,  to  be  for 
ever  united  to  the  crown  and  realm  of  England)  was  confirmed 
by  king  Edward  III,  with  fome  additions  ;  particularly  that  it 
mould  be  governed  by  the  laws  and  ufages  which  it  enjoyed  du- 
ring the  time  of  king  Alexander,  that  is,  before  it's  reduction 

ed  to  alter  every  part  of  it's  laws,  is  the  their  conjun&ion,  in  which  all  the  rights  of 

height  of  political   abfurdity.     The  truth  fovereignty,  and  particularly  that  of  legif- 

feems  to  be,  that  in  fuch  an  incorporate  union  lation,  muft  of  neceffity  refide.    (See  War- 

( which  is  well  diftinguiihed  by  a  very  learn-  burton's  alliance.  195.)   But  the  imprudent 

ed  prelate  from  v.  foe  derate  alliance,    where  exertion  of  this  right  would  probably  raife 

fuch  an    infringement  would  certainly  re-  a  very  alarming  ferment  in  the  minds  of 

icind    the   compaft  )    the    two  contracting  individuals,  and  therefore  it  is  hinted  above 

ftates  are  totally  annihilated,  without  any  that  fuch  an  attempt  might  endanger  (though 

power  of  revival ;  and  a  third  arifes  from  not  certainly  dejlroy]  the  union. 

by 


§.  4«  the  L  A  w  s    of  E  N  G  L  A  N  D.  99 

by  Edward  I.  It's  conftitution  was  new-modelled,  and  put  upon 
an  Englilh  footing  by  a  charter  of  king  James  I :  and  all  it's  li- 
berties, franchifes,  and  cuftoms,  were  confirmed  in  parliament 
by  the  ftatutes  22  Edw.  IV.  c.  8.  and  2  Jac.  I.  c.  28.  Though 
therefore  it  hath  fome  local  peculiarities,  derived  from  the 
antient  laws  of  Scotland  f,  yet  it  is  clearly  part  of  the  realm  of 
England,  being  reprefented  by  burgefles  in  the  houfe  of  com- 
mons, and  bound  by  all  acts  of  the  Britifh  parliament,  whether 
fpecially  named  or  otherwife.  And  therefore  it  was  (perhaps  fu~ 
perfluoufly)  declared  by  ftatute  20  Geo.  II.  c.  42.  that,  where 
England  only  is  mentioned  in  any  act  of  parliament,  the  fame 
notwithstanding  hath  and  {hall  be  deemed  to  comprehend  the 
dominion  of  Wales  and  town  of  Berwick  upon  Tweed.  And, 
though  certain  of  the  king's  writs  or  procefles  of  the  courts  of 
Weftminfter  do  not  ufually  run  into  Berwick,  any  more  than  the 
principality  of  Wales,  yet  it  hath  been  folemnly  adjudged6  that 
all  prerogative  writs  (as  thofe  of  mandamus,  prohibition,  habeas 
corpus,  certiorari,  &c,}  may  iflue  to  Berwick  as  well  as  to  every 
other  of  the  dominions  of  the  crown  of  England,  and  that  in- 
dictments and  other  local  matters  arifing  in  the  town  of  Berwick 
may  be  tried  by  a  jury  of  the  county  of  Northumberland. 

A  s  to  Ireland,  that  is  ftill  a  diftinct  kingdom ,-  though  a  de* 
pendent,  fubordinate  kingdom.  It  was  only  entitled  the  domi^ 
nion  or  lordfhip  of  Ireland h,  and  the  king's  ftile  was  no  other 
than  dominus  Hiberniae,  lord  of  Ireland,  till  the  thirty  third  year 
of  king  Henry  the  eighth ;  when  he  affumed  the  title  of  king, 
which  is  recognized  by  act  of  parliament  35  Hen.  VIII.  c.  3. 
But,  as  Scotland  and  England  are  now  one  and  the  fame  kingdom, 
and  yet  differ  in  their  municipal  laws;  fo  England  and  Ireland 
are,  on  the  other  hand,  diftinct  kingdoms,  and  yet  in  general 
agree  in  their  laws.  The  inhabitants  of  Ireland  are,  for  the  mod 
part,  defcended  from  the  Englifh,  who  planted  it  as  a  kind  of 

f  Hale.  Hift.  C.  L.  183.  i  Sid.  382.462.  E  Cro.  Jac.  543.  2  Roll.  Abr.  292.  S«£, 
z  Show.  365.  1 1  Geo.  I.e.  4.  4  Burr.  834. 

h  Stat.  Hiberniae.   14  Hen.  III. 

N  2  .colony, 


i oo         Of  the  COUNTRIES  fubjeSl  to     I N T R o D. 

colony,  after  the  conqueft  of  it  by  king  Henry  the  fecond ;  and 
the  laws  of  England  were  then  received  and  fworn  to  by  ths 
Irifh  nation,  aflembled  at  the  council  of  Lifmore '.  And  as  Ire- 
land, thus  conquered,  planted,  and  governed,  ftill  continues  in  a 
ftate  of  dependence,  it  muft  neceffarily  conform  to,  and  be  obli- 
ged by,  fuch  laws  as  the  fuperior  ftate  thinks  proper  to  prefcritie. 

AT  the  time  of  this  conqueft  the  Irifh  were  governed  by  what 
they  called  the  Brehon  law,  fo  ftiled  from  the  Irifh  name  of 
judges,  who  were  denominated  Brehonsk.  But  king  John  in  the 
twelfth  year  of  his  reign  went  into  Ireland,  and  carried  over  with 
him  many  able  fages  of  the  law ;  and  there  by  his  letters  patent, 
in  right  of  the  dominion  of  conqueft,  is  faid  to  have  ordained 
and  eftablifhed  that  Ireland  mould  be  governed  by  the  laws  of 
England ' :  which  letters  patent  fir  Edward  Coke  m  apprehends 
to  have  been  there  confirmed  in  parliament.  But  to  this  ordi- 
nance many  of  the  Irifh  were  averfe  to  conform,  and  ftill  ftuck 
to  their  Brehon  law  :  fo  that  both  Henry  the  third  n  and  Edward 
the  firft0  were  obliged  to  renew  the  injunction;  and  at  length 
in  a  parliament  holden  at  Kilkenny,  40  Edw.  Ill,  under  Lionel 
duke  of  Clarence,  the  then  lieutenant  of  Ireland,  the  Brehoa 
law  was  formally  abolifhed,  it  being  unanimoufly  declared  to  be 
indeed  no  law,  but  a  lewd  cuftom  crept  in  of  later  times.  And 
yet,  even  in  the  reign  of  queen  Elizabeth,  the  wild  natives  ftill 
kept  and  preferved  their  Brehon  law;  which  is  defcribedp  to 
have  been  "  a  rule  of  right  umvritten,  but  delivered  by  tradition 
"  from  one  to  another,  in  which  oftentimes  there  appeared  great 
"  fhevv  of  equity  in  determining  the  right  between  party  and 
"  party,  but  in  many  things  repugnant  quite  both  to  God's  law 
"  and  man's."  The  latter  part  of  this  character  is  alone  afcribed 

*  Pryn.  on  jflnft.  249.  tur  Hylcrnici  Deo  deteftabiles  exijlunt,  et  omni 
k  4  Inft.  358.     Edm.   Spenfer's   ftate  of   juri  dijjonant,    adeo  quod  leges  cenferi  nan  de- 

Jrcland.    p.  1513.    edit.  Hughes.  icant  —  r.obis  et  conf.lio  ncflro  fatis  <videtur  ex- 

1  Vaugh.  294.   zPryn.  Rec.Sj.  7Rep.23.  pcdiens,  eifdem  utendas  cancedere  leges  Anglica- 

"  i  Lift.  141.  nets.    3  Pryn.  Rec.  1 21 8. 

"  A.  R.  30.    i  Rym.  FoeJ.  442.  P  Edm.  Spenfer.  ilid. 

•  A.  R.  5.  —pro  ee  quod  leges  quilm  u'un- 

to 


§,4.  //$2  LAWS  0/"  ENGLAND.  101 

to  it,    by  the  laws  before-cited  of  Edward   the  firft  and   his 
grandfon. 

B  u  T  as  Ireland  v/as  a  diftincl:  dominion,  and  had  parliaments 
of  it's  own,  it  is  to  be  obferved,  that  though  the  immemorial  cuf- 
toms,  or  common  law,  of  England  were  made  the  rule  of  juftlce 
in  Ireland  alfo,  yet  no  acts  of  the  Englim  parliament,  fmce  the 
twelfth  of  king  John,  extended  into  that  kingdom ;  unlefs  it 
were  fpecially  named,  or  included  under  general  words,  fuch  as, 
"within  any  of  the  king's  dominions."  And  this  is  particularly 
exprefled,  and  the  reafon  given  in  the  year  books q :  "a  tax 
««  granted  by  the  parliament  of  England  (hall  not  bind  thofe  of 
"  Ireland,  becaufe  they  are  not  fummoned  to  our  parliament :" 
and  again,  "  Ireland  hath  a  parliament  of  it's  own,  and  maketh 
"  and  altereth  laws ;  and  our  ftatutes  do  not  bind  them,  becaufe 
"  they  do  not  fend  knights  to  our  parliament :  but  their  perfons 
"  are  the  king's  fubjects,  like  as  the  inhabitants  of  Calais,  Gaf- 
"  coigny,  and  Guienne,  while  they  continued  under  the  king's 
"fubjedlion."  The  general  run  of  laws,  enacted  by  the  fuperior 
ftate,  are  fuppofed  to  be  calculated  for  it's  own  internal  govern- 
ment, and  do  not -extend  to  it's  diftant  dependent  countries; 
which,  bearing  no  part  in  the  legislature,  are  not  therefore  in  it's 
ordinary  and  daily  contemplation.  But,  when  the  fovereign  le- 
giflative  power  fees  it  neceffary  to  extend  it's  care  to  any  of  it's 
fubordinate  dominions,  and  mentions  them  expreflly  by  name  or 
includes  them  under  general  words,  there  can  be  no  doubt  but 
then  they  are  bound  by  it's  laws r. 

THE  original  method  of  pafling  ftatutes  in  Ireland  was  nearly 
the  fame  as  in  England,  the  chief  governor  holding  parliaments 
at  his  pleafure,  which  enacted  fuch  laws  as  they  thought  proper*. 
But  an  ill  ufe  being  made  of  this  liberty,  particularly  by  lord 
Gormanftown,  deputy-lieutenant  in  the  reign  of  Edward  IVV 

i  aoHen.VI.   c.  8,    zRic.  III.   c.  12.  s  Irifli  Stat.    1 1  Eliz.   ft.  3.  c.  8. 

'  Yearbook  i  Hen. VII.  0.3.    7  Rep.  22.         '  Ibid.   10  Hen.  VII.  0.23. 
Calvia's  cafe. 

afet 


102          Of  the  C  o  u  N  T  R  i  E  s  fubject  to      IN T ROD, 

a  fet  of  flatutes  were  there  enacted  in  the  10  Hen.  VII.  (fir  Ed- 
ward Poynings  being  then  lord  deputy,  whence  they  are  called 
Poynings'  laws)  one  of  which",  in  order  to  reftrain  the  power  as 
well  of  the  deputy  as  the  Irifh  parliament,  provides,  r .  That, 
before  any  parliament  be  fummoned  or  holden,  the  chief  gover- 
nor and  council  of  Ireland  mall  certify  to  the  king  under  the 
great  feal  of  Ireland  the  confiderations  and  caufes  thereof,  and 
the  articles  of  the  acls  propofed  to  be  pafled  therein.  2.  That 
after  the  king,  in  his  council  of  England,  mail  have  confidered, 
approved,  or  altered  the  faid  ails  or  any  of  them,  and  certified 
them  back  under  the  great  feal  of  England,  and  mall  have  given 
licence  to  fummon  and  hold  a  parliament,  then  the  fame  mail  be 
fummoned  and  held  -,  and  therein  the  faid  acts  fo  certified,  and 
no  other,  fliall  be  propofed,  received,  or  rejected  w.  But  as  this 
precluded  any  law  from  being  propofed,  but  fuch  as  were  pre- 
conceived before  the  parliament  was  in  being,  which  occalioned 
many  inconveniences  and  made  frequent  diffolutions  neceffary,  it 
was  provided  by  the  flatute  of  Philip  and  Mary  before  cited,  that 
any  new  propoiitions  might  be  certified  to  England  in  the  ufual 
forms,  even  after  the  fummons  and  during  the  feffion  of  parlia- 
ment. By  this  means  however  there  was  nothing  left  to  the  par- 
liament in  Ireland,  but  a  bare  negative  or  power  of  rejecting,  not 
of  propofing  or  altering,  any  law.  But  the  ufage  now  is,  that 
bills  are  often  framed  in  either  houfe,  under  the  denomination  of 
"  heads  for  a  bill  or  bills  j"  and  in  that  fhape  they  are  offered  to 
the  confideration  of  the  lord  lieutenant  and  privy  council :  who, 
upon  fuch  parliamentary  intimation,  or  otherwife  upon  the  ap- 
plication of  private  perfons,  receive  and  tranfmit  fuch  heads,  or 
reject  them  without  any  franfmifTion  to  England.  And,  with 
•  regard  to  Poynings'  law  in  particular,  it  cannot  be  repealed  or 
fufpended,  unlefs  the  bill  for  that  purpofe,  before  it  be  certified 
to  England,  be  approved  by  both  the  houfes x. 


u  cap.  4.  expounded  by  3  &  4 Ph.  &  M.         w  4  Inft.  353. 
c.  4.  J:  Iriih  Stat.  1 1  Eiiz.  ft.  3.  c.  38. 


BUT 


§.  4«  the  L  A  w  s  of  E  N  G  L  A  N  D.  203- 

BUT  the  Irifli  nation,  being  excluded  from  the  benefit  of  the 
Englifh  ftatutes,  were  deprived  of  many  good  and  profitable  laws, 
made  for  the  improvement  of  the  common  law :  and,  the  mea- 
fure  of  juflice  in  both  kingdoms  becoming  thereby  no  longer 
uniform,  therefore  it  was  enacted  by  another  of  Poynings'  lawsy, 
that  all  acts  of  parliament,  before  made  in  England,  fhould  be  of 
force  within  the  realm  of  Ireland*.  But,  by  the  fame  rule  that 
no  laws  made  in  England,  between  king  John's  time  and  Poyn- 
ings' law,  were  then  binding  in  Ireland,  it  follows  that  no  acts 
of  the  Englifh  parliament  made  fince  the  10  Hen.  VII.  do  now 
bind  the  people  of  Ireland,  unlefs  fpecially  named  or  included, 
under  general  words3.  And  on  the  other  hand  it  is  equally  clear,, 
that  where  Ireland  is  particularly  named,  or  is  included  under 
general  words,  they  are  bound  by  fuch  acts  of  parliament.  For 
this  follows  from  the  very  nature  and  conftitution  of  a  dependent 
ftate  :  dependence  being  very  little  elfe,  but  an  obligation  to 
conform  to  the  will  or  law  of  that  fuperior  perfon  or  ftate,  upon 
which  the  inferior  depends.  The  original  and  true  ground  of  this 
fuperiority,  in  the  prefent  cafe,  is  what  we  ufually  call,  though 
fomewhat  improperly,  the  right  of  conqueft  :  a  right  allowed 
by  the  law  of  nations,  if  not  by  that  of  nature ;  but  which  in 
reafon  and  civil  policy  can  mean  nothing  more,  than  that,  in  or- 
der to  put  an  end  to  hoftilities,  a  compact  is  either  exprefTly  or 
tacitly  made  between  the  conqueror  and  the  conquered,  that  if 
they  will  acknowlege  the  victor  for  their  mafter,  he  will  treat 
them  for  the  future  as  fubjects,  and  not  as  enemies b. 

BUT  this  ftate  of  dependence  being  almofl  forgotten,  and? 
ready  to  be  difputed  by  the  Irifh  nation,  it  became  neceffary  fome. 
years  ago  to  declare  how  that  matter  really  flood  :  and  therefore 
by  ftatute  6  Geo.  I.  c.  5.  it  is  declared,  that  the  kingdom  of 
Ireland  ought  to  be  fubordinate  to,  and  dependent  upon,  the 
imperial  crown  of  Great  Britain,  as  being  infeparably  united: 

*  cap.  22.  *   1 2  Rep.  112. 

Z4laft.  351..  b  Puff.  L.  of  N.  viii.  6.  24; 

thereto  y 


104          Of  tie  COUNTRIES  fubjeEl  to      IN  TROD, 

thereto ;  and  that  the  king's  majefty,  with  the  confent  of  the 
lords  and  commons  of  Great  Britain  in  parliament,  hath  power 
to  make  laws  to  bind  the  people  of  Ireland. 

THUS  we  fee  how  extenfively  the  laws  of  Ireland  commu- 
nicate with  thofe  of  England  :  and  indeed  fuch  communication 
is  highly  neceffary,  as  the  ultimate  refort  from  the  courts  of  juf- 
tice  in  Ireland  is,  as  in  Wales,  to  thofe  in  England ;  a  writ  of 
error  (in  the  nature  of  an  appeal)  lying  from  the  king's  bench  in 
Ireland  to  the  king's  bench  in  England  %  as  the  appeal  from 
the  chancery  in  Ireland  lies  immediately  to  the  houfe  of  lords 
here  :  it  being  expreffly  declared,  by  the  fame  flatute  6  Geo.  I. 
c.  5.  that  the  peers  of  Ireland  have  no  jurifdiction  to  affirm  or 
reverfe  any  judgments  or  decrees  whatfoever.  The  propriety, 
and  even  neceffity,  in  all  inferior  dominions,  of  this  conftitution, 
"  that,  though  juftice  be  in  general  adminiftred  by  courts  of 
"  their  own,  yet  that  the  appeal  in  the  laft  refort  ought  to  be  to 
"  the  courts  of  the  fuperior  ftate,"  is  founded  upon  thefe  two  rea- 
fons.  i.  Becaufe  otherwife  the  law,  appointed  or  permitted  to 
fuch  inferior  dominion,  might  be  infenlibly  changed  within  it- 
felf,  without  the  aflent  of  the  fuperior.  2.  Becaufe  otherwife 
judgments  might  be  given  to  the  difadvantage  or  diminution  of 
the  fuperiority ;  or  to  make  the  dependence  to  be  only  of  the 
perfon  of  the  king,  and  not  of  the  crown  of  England d. 

WITH  regard  to  the  other  adjacent  iflands  which  are  fubject 
to  the  crown  of  Great  Britain,  fome  of  them  (as  the  ifle  of 
Wight,  of  Portland,  of  Thanet,  GV.)  are  comprized  within 
fome  neighbouring  county,  and  are  therefore  to  be  looked  upon 
as  annexed  to  the  mother  ifland,  and  part  of  the  kingdom  of 
England.  But  there  are  others,  which  require  a  more  particular 
consideration. 


'  This  was  law  in  the  time  of  Hen. VIII;     dl-cerfity  af  courts,  c.  bunk  le  rty. 
as  appears  by  the  anticnt  book,  entituled,          d  Vaugh.  402. 


AND, 


§.  4-  the  L  A  w  s  of  E  N  G  L  A  N  D.  105 

AND,  firft,  the  ifle  of  Man  is  a  diftincl:  territory  from  Eng- 
land and  is  not  governed  by  our  laws  ;  neither  doth  any  a£t  of 
parliament  extend  to  it,  unlefs  it  be  particularly  named  therein ; 
and  then  an  act  of  parliament  is  binding  there e.  It  was  formerly 
a  fubordinate  feudatory  kingdom,  fubject  to  the  kings  of  Norway; 
then  to  king  John  and  Henry  III  of  England;  afterwards  to  the 
kings  of  Scotland ;  and  then  again  to  the  crown  of  England  : 
and  at  length  we  find  king  Henry  IV  claiming  the  ifland  by  right 
of  conqueft ;  and  difpofing  of  it  to  the  earl  of  Northumberland  ; 
upon  whofe  attainder  it  was  granted  (by  the  name  of  the  lordfhip 
of  Man)  to  fir  John  de  Stanley  by  letters  patent  7  Hen.  IV f.  In 
his  lineal  defcendants  it  continued  for  eight  generations,  till  the 
death  of  Ferdinando  earl  of  Derby,  A.  D.  1594;  when  a  con- 
troveriy  arofe  concerning  the  inheritance  thereof,  between  his 
daughters  and  William  his  furviving  brother  :  upon  which,  and 
a  doubt  that  was  ftarted  concerning  the  validity  of  the  original 
patent s,  the  ifland  was  feifed  into  the  queen's  hands,  and  after- 
wards various  grants  were  made  of  it  by  king  James  the  firfl ; 
all  which  being  expired  or  furrendered,  it  was  granted  afrefh  in 
7  Jac.  I.  to  William  earl  of  Derby,  and  the  heirs  male  of  his 
body,  with  remainder  to  his  heirs  general ;  which  grant  was  the 
next  year  confirmed  by  acl:  of  parliament,  with  a  reflraint  of  the 
power  of  alienation  by  the  faid  earl  and  his  ifTue  male.  On  the 
death  of  James  earl  of  Derby,  A.D.  1735*  the  male  line  of  earl 
William  failing,  the  duke  of  Atholl  fucceeded  to  the  ifland  as  heir 
general  by  a  female  branch.  In  the  mean  time,  though  the  title 
of  king  had  long  been  difufed,  the  earls  of  Derby,  as  lords  of 
Man,  had  maintained  a  fort  of  royal  authority  therein ;  by  af- 
fenting  or  diflenting  to  laws,  and  exercifing  an  appellate  jurifdic- 
tion.  Yet,  though  no  Englifh  writ,  or  procefs  from  the  courts 
of  Weftminfter,  was  of  any  authority  in  Man,  an  appeal  lay  from 
a  decree  of  the  lord  of  the  ifland  to  the  king  of  Great  Britain  in 
council1".  But,  the  diftincl:  jurifdidlion  of  this  little  fubordinate 

e  4  Inft.  284.    2  And.  116.  s  Camden.  Eliz.  A.  D.  i  594. 

f  Selden.  tit.  hon.  1.3.  h   i  P.  \V'US.  329. 

O  royalty 


1 06          Of  the  COUNTRIES  fubjeft  to      I  N  T  R  o  DV 

royalty  being  found  inconvenient  for  the  purpofes  of  public  juf- 
tice,  and  for  the  revenue,  ( it  affording  a  commodious  aiylum  for 
debtors,  outlaws,  and  fmugglers)  authority  was  given  to  the  trea- 
fury  by  flatute  12  Geo.  I.  c.  28.  to  purchafe  the  intereft  of  the 
then  proprietors  for  the  ufe  of  the  crown  :  which  purchafe  was 
at  length  completed  in  the  year  1765,  and  confirmed  by  fta- 
tutes  5  Geo.  III.  c.  26  and  39.  whereby  the  whole  ifland  and 
all  it's  dependencies,  fo  granted  as  aforefaid,  (except  the  landed 
property  of  the  Atholl  family,  their  manerial  rights  and  emolu- 
ments, and  the  patronage  of  the  bifhoprick '  and  other  ecclefiafti- 
cal  benefices)  are  unalienably  veiled  in  the  crown,  and  fubjedted 
to  the  regulations  of  the  Britifh  excife  and  cuftoms. 

THE  iflands  of  Jerfey,  Guernfey,  Sark,  Alderney,.  and  their 
appendages,  were  parcel  of  the  duchy  of  Normandy,  and  were 
united  to  the  crown  of  England  by  the  firft  princes  of  the  Nor- 
man line.  They  are  governed  by  their  own  laws,  which  are  for 
the  moft  part  the  ducal  cuftoms  of  Normandy,  being  collected 
in  an  antient  book  of  very  great  authority,  entituled,  le  grand 
coujlumier*  The  king's  writ,  or  procefs  from  the  courts  of  Weft- 
minfter,  is  there  of  no  force ;  but  his  commiffion  is.  They  are 
not  bound  by  common  adls  of  our  parliaments,  unlefs  particularly 
named  k.  All  caufes  are  originally  determined  by  their  own  offi- 
cers, the  bailiffs  and  jurats  of  the  iflands ;  but  an  appeal  lies 
from  them  to  the  king  in  council,  in  the  lafl  refort. 

BESIDES  thefe  adjacent  iflands,  our  more  diftant  plantations 
in  America,  and  elfewhere,  are  alfo  in  fome  refpedts  fubjecT:  to  the 
Englifh  laws.  Plantations,  or  colonies  in  diftant  countries,  are 
either  fuch  where  the  lands  are  claimed  by  right  of  occupancy 
only,  by  finding  them  defart  and  uncultivated,  and  peopling  them 
from  the  mother  country;  or  where,  when  already  cultivated, 
they  have  been  either  gained  by  conquefl,  or  ceded  to  us  by  trea- 
ties. And  both  thefe  rights  are  founded  upon  the  law  of  nature* 

'  The  bifhoprick  of  Man,  or  Sodor,  or     of  York  by  ftatute  33  Hen.  VIII.  c.  31. 
Sodor  and  Man,  was  formerly  within  the         k  4  I  nil.  286. 
province  of  Canterbury,  but  annexed  to  thaj  Of 


§.  4»  the    L  A  W  S    of    E  N  G  L  A  N  D.  1 07 

or  at  leaSt  upon  that  of  nations.  But  there  is  a  difference  between 
thefe  two  fpecies  of  colonies,  with  reSpect  to  the  laws  by  which 
they  are  bound.  For  it  hath  been  held1,  that  if  an  uninhabited 
country  be  difcovered  and  planted  by  EngliSh  Subjects,  all  the 
Englilh  laws  then  in  being,  which  are  the  birthright  of  every 
Subject m,  are  immediately  there  in  force.  But  this  muSt  be  un- 
derStood  with  very  many  and  very  great  restrictions.  Such  colo- 
niSts  carry  with  them  only  fo  much  of  the  Englilh  law,  as  is  ap- 
plicable to  their  own  lituation  and  the  condition  of  an  infant  co- 
lony ;  fuch,  for  inStance,  as  the  general  rules  of  inheritance,  and 
of  protection  from  perfonal  injuries.  The  artificial  refinements 
and  distinctions  incident  to  the  property  of  a  great  and  commer- 
cial people,  the  laws  of  police  and  revenue,  (fuch  efpecially  as 
are  inforced  by  penalties)  the  mode  of  maintenance  for  the  efta- 
blifhed  clergy,  the  jurisdiction  of  fpiritual  courts,  and  a  multi- 
tude of  other  provifions,  are  neither  neceffary  nor  convenient  for 
them,  and  therefore  are  not  in  force.  What  Shall  be  admitted 
and  what  rejected,  at  what  times,  and  under  what  restrictions, 
mutt,  in  cafe  of  difpute,  be  decided  in  the  firSt  inStance  by  their 
own  provincial  judicature,  fubject  to  the  revifion  and  control  of 
the  king  in  council,  the  whole  of  their  constitution  being  alfo 
liable  to  be  new-modelled  and  reformed,  by  the  general  Super- 
intending power  of  the  legiflature  in  the  mother  country.  But 
in  conquered  or  ceded  countries,  that  have  already  laws  of  their 
own,  the  king  may  indeed  alter  and  change  thofe  laws ;  but, 
till  he  does  actually  change  them,  the  antient  laws  of  the  coun- 
try remain,  unlefs  fuch  as  are  againSt  the  law  of  God,  as  in  the 
cafe  of  an  infidel  country  n.  Our  American  plantations  are  prin- 
cipally of  this  latter  fort,  being  obtained  in  the  laft  century  either 
by  right  of  conqueSt  and  driving  out  the  natives  (with  what  na- 
tural juStice  I  mall  not  at  prefent  enquire)  or  by  treaties.  And 
therefore  the  common  law  of  England,  as  fuch,  has  no  allowance 
or  authority  there ;  they  being  no  part  of  the  mother  country, 
but  diftinc~l  (though  dependent)  dominions.  They  are  Subject 

1  Salk.  411.  666.  "7  Rep.  17.    Calvin's  cafe.    Show.  Parl. 

m  2p.  Wms.  75.  C.  31. 

O  2  how- 


io8          Of  the  Cou  N  T  R  i  E  s  fubjeft  to      INTROD. 

however  to  the  control  of  the  parliament  -,  though  (like  Ireland, 
Man,  and  the  reft)  not  bound  by  any  adts  of  parliament,  unlefs 
particularly  named. 

WITH    refpedl   to    their   interior   polity,    our  colonies    are 
properly  of  three  forts,     i.  Provincial  eflablifhments,  the  con- 
ftitutions  of  which  depend  on  the  refpective  commifTions  ifTued 
by  the   crown   to   the    governors,    and  the   inftructions  which 
ufually  accompany  thofe  commifiions ;    under  the  authority  of 
which,  provincial  aflemblies  are  conilituted,  with  the  power  of 
making  local  ordinances,   not  repugnant  to  the  laws  of  England. 
2.   Proprietary  governments,  granted  out  by  the  crown  to  indi- 
viduals,  in  the  nature  of  feudatory  principalities,  with  all  the 
inferior  regalities,  and  fubordinate  powers  of  legiflation,  which 
formerly  belonged  to  the  owners  of  counties  palatine  :    yet  ftill 
with  thefe  exprefs  conditions,  that  the  ends  for  which  the  grant 
was  made  be  fubftantially  purfued,  and  that  nothing  be  attempt- 
ed which    may  derogate   from  the  fovereignty  of  the   mother 
country.     3.   Charter  governments,  in  the  nature  of  civil  corpo- 
rations, with  the  power  of  making  by-laws  for  their  own  inte- 
rior regulation,   not  contrary  to  the  laws  of  England  ;  and  with 
fuch  rights  and  authorities  as  are  fpecially  given  them  in  their 
feveral  charters  of  incorporation.    The  form  of  government  in 
mofl  of  them  is  borrowed  from  that  of  England.     They  have  a 
governor  named  by  the  king,  (or  in  fome  proprietary  colonies  by 
the  proprietor)  who  is  his  reprefentative  or  deputy.     They  have 
courts  of  juftice  of  their  own,  from  whofe  decilions   an  appeal 
lies  to  the  king  in  council  here  in  England.     Their  general  af- 
femblies  which  are  their  houfe  of  commons,  together  with  their 
council  of  ftate  being  their  upper  houfe,  with  the  concurrence 
of  the  king  or  his  reprefentative  the  governor,  make  laws  fuited 
to  their  own  emergencies.    But  it  is  particularly  declared  by  fta- 
tute  7  6c  8  W.  III.    c.  22.    that  all  laws,    by-laws,   ufages,    and 
cuftoms,  which  fhall  be  in  practice  in  any  of  the  plantations, 
repugnant  to  any  law,  made  or  to  be  made  in  this  kingdom  re- 
lative to  the  faid  plantations,  mall  be  utterly  void  and  of  none 

effect 


§.  4«  the  L  A  w  s  of  E  N  G  L  A  N  D.  109 

effect.  And,  becaufe  feveral  of  the  colonies  had  claimed  the  fole 
and  exclufive  right  of  impoiing  taxes  upon  themfelves,  the  fta- 
tute  6  Geo.  III.  c.  12.  expreflly  declares,  that  all  his  majefty's 
colonies  and  plantations  in  America  have  been,  are,  and  of  right 
ought  to  be-,  fubordinate  to  and  dependent  upon  the  imperial 
crown  and  parliament  of  Great  Britain ;  who  have  full  power 
and  authority  to  make  laws  and  ftatutes  of  fufficient  validity  to 
bind  the  colonies  and  people  of  America,  fubjects  of  the  crown 
of  Great  Britain,  in  all  cafes  whatfoever. 

THESE  are  the  feveral  parts  of  the  dominions  of  the  crown 
of  Great  Britain,  in  which  the  municipal  laws  of  England  are 
not  of  forcS  or  authority,  merely  as  the  municipal  laws  of  Eng- 
land. Moil  of  them  have  probably  copied  the  fpirit  of  their  own 
law  from  this  original ;  but  then  it  receives  it's  obligation,  and 
authoritative  force,  from  being  the  law  of  the  country. 

As  to  any  foreign  dominions  which  may  belong  to  the  perfon 
of  the  king  by  hereditary  defcent,  by  purchafe,  or  other  acqui- 
fition,  as  the  territory  of  Hanover,  and  his  majefty's  other  pro- 
perty in  Germany ;  as  thefe  do  not  in  any  wife  appertain  to  the 
crown  of  thefe  kingdoms,  they  are  entirely  unconnected  with  the 
laws  of  England,  and  do  not  communicate  with  this  nation  in 
any  refpedt  whatfoever.     The  Englifh   legiflature   had  wifely  re- 
marked the  inconveniences  that  had  formerly  refulted  from  do- 
minions on  the  continent  of  Europe;  from  the  Norman  territory 
which  William   the  conqueror  brought  with  him,  and  held  in 
conjunction  with  the  Englifh  throne;  and  from  Anjou,  and  it's 
appendages,  which  fell   to  Henry  the  fecond  by  hereditary  de- 
fcent.   They  had  feen  the  nation  engaged  for  near  four  hundred 
years  together  in  ruinous  wars  for  defence  of  thefe  foreign  domi- 
nions ;    till,  happily  for  this  country,   they  were  loft  under  the 
reign  of  Henry  the  fixth.  They  obferved  that,  from  that  time,  the 
maritime  interefts  of  England  were  better  underftood  and  more 
clofely  purfued  :    that,  in  confequence  of  this  attention,   the  na- 
tion, as  foon  as  fhe  had  refted  from  her  civil  wars,  began  at  this 

period 


no         Of  the  COUNTRIES  fubjeft  to      I N T R o D. 

period  to  fiourifh  all  at  once  j  and  became  much  more  confider- 
able  in  Europe,  than  when  her  princes  were  pofleffed  of  a  larger 
territory,  and  her  counfels  diftrafted  by  foreign  interefts.  This 
experience  and  thefe  confiderations  gave  birth  to  a  conditional 
claufe  in  the  acT:  °  of  fettlement,  which  vefted  the  crown  in  his 
prefent  majefty's  illuftrious  houfe,  "that  in  cafe  the  crown  and 
"imperial  dignity  of  this  realm  fhall  hereafter  come  to  any  per- 
"  fon  not  being  a  native  of  this  kingdom  of  England,  this  nation 
"  mail  not  be  obliged  to  engage  in  any  war  for  the  defence  of  any 
*'  dominions  or  territories  which  do  not  belong  to  the  crown  of 
"  England,  without  confent  of  parliament." 

W  E  come  now  to  confider  the  kingdom  of  England  in  parti- 
cular, the  diredl  and  immediate  fubjecl:  of  thofe  laws,  concerning 
which  we  are  to  treat  in  the  enfuing  commentaries.  And  this 
comprehends  not  only  Wales  and  Berwick,  of  which  enough  has 
been  already  faid,  but  alfo  part  of  the  fea.  The  main  or  high 
feas  are  part  of  the  realm  of  England,  for  thereon  our  courts  of 
-admiralty  have  jurifdidlion,  as  will  be  fhewn  hereafter  ;  but  they 
are  not  fubjecl:  to  the  common  law  p.  This  main  fea  begins  at 
the  low- water-mark.  But  between  the  high- water-mark,  and 
the  low-water-mark,  where  the  fea  ebbs  and  flows,  the  common 
law  and  the  admiralty  have  divifum  imperium,  an  alternate  jurif- 
didlion  ;  one  upon  the  water,  when  it  is  full  fea ;  the  other  upon 
the  land,  when  it  is  an  ebb  q. 

THE  territory  of  England  is  liable  to  two  diviiions ;  the  one 
ecclefiaftical,  the  other  civil. 

i.  THE  ecclefiaftical  divifion  is,  primarily,  into  two  provin- 
ces, thofe  of  Canterbury  and  York,  A  province  is  the  circuit  of 
an  arch-bilhop's  jurifdiction.  Each  province  contains  divers  dio- 
cefes,  or  fees  of  fuffragan  bifhops  ;  whereof  Canterbury  includes 
twenty  one,  and  York  three  :  befides  the  billioprick  of  the  ifle 

0  Stat.  12  &  13  Will.  III.  c.  3.  i  Finch.  L.  78. 

<•  Co.  Litt.  260. 

of 


§.  4.  the  LAWS  0/"  ENGLAND,  m 

of  Man,  which  was  annexed  to  the  province  of  York  by  king 
Henry  VIII.  Every  diocefe  is  divided  into  archdeaconries,  whereof 
there  are  fixty  in  all ;  each  archdeaconry  into  rural  deanries, 
which  are  the  circuit  of  the  archdeacon's  and  rural  dean's  jurii- 
diction,  of  whom  hereafter ;  and  every  deanry  is  divided  into 
parishes r. 

A  PA  RISK  is  that  circuit  of  ground  in  which  the  fouls  un- 
der the  care  of  one  parfon  or  vicar  do  inhabit.  Thefe  are  com- 
puted to  be  near  ten  thoufand  in  number5.  How  antient  the  di- 
vilion  of  parimes  is,  may  at  prefent  be  difficult  to  afcertain ;  for 
it  feems  to  be  agreed  on  all  hands,  that  in  the  early  ages  of  chrif- 
tianity  in  this  ifland,  parimes  were  unknown,  or  at  leaft  fignified 
the  fame  that  a  diocefe  does  now.  There  was  then  no  appro- 
priation of  eccleliaftical  dues  to  any  particular  church  ;  but  every 
man  was  at  liberty  to  contribute  his  tithes  to  whatever  prieft  or 
church  he  pleafed,  provided  only  that  he  did  it  to  fome  :  or,  if 
he  made  no  fpecial  appointment  or  appropriation  thereof,  they 
were  paid  into  the  hands  of  the  bifhop,  whofe  duty  it  was  ta 
distribute  them  among  the  clergy  and  for  other  pious  purpofes 
according  to  his  own  difcretion  *. 

MR  Camden  u  fays  England  was  divided  into  parishes  by  arch- 
bimop  Honorius  about  the  year  630.  Sir  Henry  Hobart  w  lays 
it  down  that  parimes  were  firft  creeled  by  the  council  of  Lateran, 
which  was  held  A.  D.  1179.  Each  widely  differing  from  the 
other,  and  both  of  them  perhaps  from  the  truth;  which  will 
probably  be  found  in  the  medium  between  the  two  extremes.  For 
Mr  Selden  has  clearly  {hewn x,  that  the  clergy  lived  in  common 
without  any  divifion  of  parimes,  long  after  the  time  mentioned 
by  Camden.  And  it  appears  from  the  Saxon  laws,  that  parifhes 
were  in  being  long  before  the  date  of  that  council  of  Lateran,  to 
which  they  are  afcribed  by  Hobart. 

*  Co.  Litt.  94.  "  in  his  Britannia, 

s  Gibfon's  Eritan.  w  Hob.  296. 

»  Seld.  of  tith.9.4.  2^(1.646.  Hob. 296.         "  of  tithes,  c.  9. 

WE 


U2  Of  the  COUNTRIES  fubjett  to     I N T R o D. 

WE  find  the  distinction  of  pariflies,  nay  even  of  mother- 
churches,  fo  early  as  in  the  laws  of  king  Edgar,  about  the  year 
970.  Before  that  time  the  confecration  of  tithes  was  in  general 
arbitrary ;  that  is,  every  man  paid  his  own  (as  was  before  ob- 
ferved)  to  what  church  or  pariih  he  pleafed.  But  this  being  liable 
to  be  attended  with  either  fraud,  or  at  leall  caprice,  in  the  per- 
fons  paying  j  and  with  either  jealoufies  or  mean  compliances  in 
fuch  as  were  competitors  for  receiving  them  ;  it  was  now  ordered 
by  the  law  of  king  Edgar y,  that  "dentur  omnes  decimae  primariae 
"  ecclejiae  ad  quam  parocbia  pertinet."  However,  if  any  thane,  or 
great  lord,  had  a  church  within  his  own  demefnes,  diftinct  from 
the  mother-church,  in  the  nature  of  a  private  chapel  -,  then, 
provided  fuch  church  had  a  coemitery  or  confecrated  place  of  bu- 
rial belonging  to  it,  he  might  allot  one  third  of  his  tithes  for  the 
maintenance  of  the  officiating  minifter  :  but,  if  it  had  no  coemi- 
tery, the  thane  muft  himfelf  have  maintained  his  chaplain  by 
fome  other  means ;  for  in  fuch  cafe  all  his  tithes  were  ordained 
to  be  paid  to  the  primariae  ecclejiae  or  mother-church  z. 

THIS  proves  that  the  kingdom  was  then  univerfally  divided 
into  parishes  ;  which  divifion  happened  probably  not  all  at  once, 
but  by  degrees.  For  it  feems  pretty  clear  and  certain  that  the 
boundaries  of  parimes  were  originally  afcertained  by  thofe  of  a 
manor  or  manors  :  fince  it  'very  feldom  happens  that  a  manor  ex- 
tends itfelf  over  more  parimes  than  one,  though  there  are  often 
many  manors  in  one  pariih.  The  lords,  as  chriftianity  fpread  it- 
felf, began  to  build  churches  upon  their  own  demefnes  or  waftes, 
to  accommodate  their  tenants  in  one  or  two  adjoining  lordfhips ; 
and,  in  order  to  have  divine  fervice  regularly  performed  therein, 
obliged  all  their  tenants  to  appropriate  their  tithes  to  the  mainte- 
nance of  the  one  officiating  minifler,  inftead  of  leaving  them  at 
liberty  to  diftribute  them  among  the  clergy  of  the  diocefe  in  ge- 
neral :  and  this  tract  of  land,  the  tithes  whereof  were  fo  appro- 

y  r .  i .  z  Ibid   c.  z.     See  alfo  the   laws  of  king 

Canute,  c.  n.  about  the  year  1030. 

priated, 


§.  4»  the  L  A  w  s  of  ENG'LAND.  113 

priated,  formed  a  diftinct  parifh.  Which  will  well  enough  account 
for  the  frequent  intermixture  of  parifhes  one  with  another.  For 
if  a  lord  had  a  parcel  of  land  detached  from,  the  main  of  his 
eftate,  but  not  fufficient  to  form  a  parifli  of  itfelf,  it  was  natural 
for  him  to  endow  his  newly  erected  church  with  the  tithes  of 
thofe  disjointed  lands ;  efpecially  if  no  church  was  then  built  in 
any  lordfhip  adjoining  to  thofe  out-lying  parcels. 

TH  u  s  parifhes  were  gradually  formed,  and  parifh  churches 
endowed  with  the  tithes  that  arofe  within  the  circuit  affigned. 
But  fome  lands,  either  becaufe  they  were  in  the  hands  of  irre- 
ligious and  carelefs  owners,  or  were  fituate  in  forefts  and  defart 
places,  or  for  other  now  unfearchable  reafons,  were  never  uni- 
ted to  any  parifli,  and  therefore  continue  to  this  day  extraparo- 
chial  j  and  their  tithes  are  now  by  immemorial  cuftom  payable 
to  the  king  inftead  of  the  bifhop,  in  truft  and  confidence  that  he 
will  diftribute  them,  for  the  general  good  of  the  church a :  yet 
extraparochial  wafles  and  marfh-lands,  when  improved  and 
drained,  are  by  the  ftatute  17  Geo.  II.  c.  37.  to  be  aflefled  to  all 
parochial  rates  in  the  parifh  next  adjoining.  And  thus  much  for 
the  ecclefiaftical  divifion  of  this  kingdom. 

2.  TH  E  civil  divifion  of  the  territory  of  England  is  into  coun- 
ties, of  thofe  counties  into  hundreds,  of  thofe  hundreds  into  ti- 
things  or  towns.  Which  divifion,  as  it  now  ftands,  feems  to  owe 
it's  original  to  king  Alfred ;  who,  to  prevent  the  rapines  and  dif- 
orders  which  formerly  prevailed  in  the  realm,  inftituted  tithings ; 
fo  called,  from  the  Saxon,  becaufe  ten  freeholders  with  their  fa- 
milies compofed  one.  Thefe  all  dwelt  together,  and  were  fureties 
or  free  pledges  to  the  king  for  the  good  behaviour  of  each  other; 
and,  if  any  offence  was  committed  in  their  diftridt,  they  were 
bound  to  have  the  offender  forthcoming b.  And  therefore  an- 

*   zlnft.647.   2  Rep.  44.  Cro.  Eliz.  5  12.  "Jtatu  ftrmijpmo  fujiitsentur  ; — quae  hoc  modi 

b  Flet.  1.47.  This  the  laws  of  king  Ed-  "feiat,    quod  fub  decennali  fetejuffioxt  debe- 

ward  the  confeflbr,  c.  20.  very  juftly  intitle  "bant  effe  mii-verfi,  fcff." 

"jfatltna  et  maxima  fee  ur  it  as,  per  qttam  emnes 

P  tiantly 


ii4  Of  the  COUNTRIES  fubjeEl  to       I  NT  ROD. 

tiently  no  man  was  fuffered  to  abide  in  England  above  forty  days, 
unlefs  he  were  enrolled  in  fome  tithing  or  decennary c.  One  of 
the  principal  inhabitants  of  the  tithing  is  annually  appointed  to 
prefide  over  the  reft,  being  called  the  tithing-man,  the  head- 
borough,  (words  which  fpeak  their  own  etymology)  and  in  fome 
countries  the  borfliolder,  or  borough's-ealder,  being  fuppofed  the 
difcreeteft  man  in  the  borough,  town,  or  tithing d. 

Ti  T  H  i  N  G  s,  towns,  or  vills,  are  of  the  fame  fignification  in 
law  ;  and  are  faid  to  have  had,  each  of  them,  originally  a  church 
and  celebration  of  divine  fervice,  facraments,  and  burials  e  : 
though  that  feems  to  be  rather  an  ecclefiaftical,  than  a  civil  dif- 
tinftion.  The  word  town  or  vill  is  indeed,  by  the  alteration  of 
times  and  language,  now  become  a  generical  term,  comprehend- 
ing under  it  the  feveral  fpecies  of  cities,  boroughs,  and  common 
towns.  A  city  is  a  town  incorporated,  which  is  or  hath  been 
the  fee  of  a  bifhop  -,  and  though  the  bimoprick  be  diflblved,  as 
at  Weftminfter,  yet  flill  it  remaineth  a  city  f.  A  borough  is  now 
understood  to  be  a  town,  either  corporate  or  not,  that  fendeth 
burgeffes  to  parliament8.  Other  towns  there  are,  to  the  num- 
ber fir  Edward  Coke  faysh  of  8803,  which  are  neither  cities 
nor  boroughs ;  fome  of  which  have  the  privileges  of  markets, 
and  others  not ;  but  both  are  equally  towns  in  law.  To  feveral 
of  thefe  towns  there  are  fmall  appendages  belonging,  called  ham- 
lets j  which  are  taken  notice  of  in  the  Statute  of  Exeter l,  which 
makes  frequent  mention  of  entire  vills,  demi-vills,  and  hamlets. 
Entire  vills  fir  Henry  Spelman  k  conjectures  to  have  confided  of 
ten  freemen,  or  frank-pledges,  demi-vills  of  five,  and  hamlets  of 
lefs  than  five.  Thefe  little  collections  of  houfes  are  fometimes 
under  the  fame  administration  as  the  town  itfelf,  fometimes  go- 
verned by  feparate  officers ;  in  which  laft  cafe  they  are,  to  fome 
purpofes  in  law,  looked  upon  as  diftinct  townmips.  Thefe  towns, 

c  Mirr.  c.  I.  §.3.  s  Litt.  §.  164. 

*  Finch.  L.  8.  h  i  Inft.  116. 

e  i  Inft.  115.  '  i^-Edw.  I. 

f  Co.  Litt.  log.  k  Gloff.  274. 

as 


§•4-  /^2  LAWS  <?/*  ENGLAND.  115 

as  was  before  hinted,  contained  each  originally  but  one  parifh, 
and  one  tithing ;  though  many  of  them  now,  by  the  encreafe 
of  inhabitants,  are  divided  into  feveral  parishes  and  tithings  : 
and,  fometimes,  where  there  is  but  one  parifh  there  are  two  or 
more  vills  or  tithings. 

As  ten  families  of  freeholders  made  up  a  town  or  tithing,  fo 
ten  tithings  compofed  a  fuperior  divifion,  called  a  hundred,  as 
confifting  of  ten  times  ten  families.  The  hundred  is  governed  by 
an  high  conftable  or  bailiff,  and  formerly  there  was  regularly  held 
in  it  the  hundred  court  for  the  trial  of  caufes,  though  now  fallen 
into  difufe.  In  fome  of  the  more  northern  counties  thefe  hun- 
dreds are  called  wapentakes '. 

TH  E  fubdivifion  of  hundreds  into  tithings  feems  to  be  moft 
peculiarly  the  invention  of  Alfred  :  the  inflkution  of  hundreds 
themfelves  he  rather  introduced  than  invented.  For  they  feem 
to  have  obtained  in  Denmark  m :  and  we  find  that  in  France  a 
regulation  of  this  fort  was  made  above  two  hundred  years  before ; 
fet  on  foot  by  Clotharius  and  Childebert,  with  a  view  of  obliging 
each  diftridl  to  anfwer  for  the  robberies  committed  in  it's  own 
divifion.  Thefe  divifions  were,  in  that  country,  as  well  military 
as  civil  j  and  each  contained  a  hundred  freemen  ;  who  were  fub- 
ject  to  an  officer  called  the  centenarius ;  a  number  of  which  cen- 
tenarn  were  themfelves  fubjedl  to  a  fuperior  officer  called  the 
count  or  comes".  And  indeed  fomething  like  this  inftitution  of 
hundreds  may  be  traced  back  as  far  as  the  antient  Germans,  from 
whom  were  derived  both  the  Franks  who  became  mailers  of  Gaul, 
and  the  Saxons  who  fettled  in  England  :  for  both  the  thing  and 
the  name,  as  a  territorial  afTemblage  of  perfons,  from  which  af- 
terwards the  territory  itfelf  might  probably  receive  it's  denomi- 
nation, were  well  known  to  that  warlike  people.  "  Centeni  ex 
"Jingulis  pagisfunt,  idque  ipfum  inter  Jitos  vocantur  ;  et  quod  primo 
"  numerus  fuit,  jam  nomen  et  honor  eft0" 

1  Seld.  in  Fortefc.  c.  24.  "  Montefq.  Sp.  L.  30.  17. 

"  Seld.  tit.  of  hon.  2.  ;.  3.  °  Tacit,  de  morib.  German.  6. 

P  2  AN 


n6  Of  the  COUNTRIES  fubjeft  to       IN  TROD. 

AN  indefinite  number  of  thefe  hundreds  make  up  a  county  or 
fhire.  Shire  is  a  Saxon  word  fignifying  a  divifion ;  but  a  county, 
comitatus,  is  plainly  derived  from  comes,  the  count  of  the  Franks ; 
that  is,  the  earl,  or  alderman  (as  the  Saxons  called  him)  of  the 
fhire,  to  whom  the  government  of  it  was  intrufted.  This  he 
ufually  exercifed  by  his  deputy,  frill  called  in  Latin  vice-comes, 
and  in  Englifh  the  fheriff,  fhrieve*  or  fhire-reeve,  fignifying 'the 
officer  of  the  fhire  ;  upon  whom  by  procefs  of  time  the  civil  ad- 
miniftration  of  it  is  now  totally  devolved.  In  fome  counties  there 
is  an  intermediate  divifion,  between  the  fhire  and  the  hundreds, 
as  lathes  in  Kent,  and  rapes  in  SufTex,  each  of  them  containing 
about  three  or  four  hundreds  apiece.  Thefe  had  formerly  their 
lathe-reeves  and  rape-reeves,  acling  in  fubordination  to  the  fhire- 
reeve.  Where  a  county  is  divided  into  three  of  thefe  intermediate 
jurisdictions,  they  are  called  trithings p,  which  were  antiendy 
governed  by  a  trithing-reeve.  Thefe  trithings  ftill  fubfifl  in  the 
large  county  of  York,  where  by  an  eafy  corruption  they  are  de- 
nominated ridings ;  the  north,  the  eaft,  and  the  weft-riding. 
The  number  of  counties  in  England  and  Wales  have  been  diffe- 
rent at  different  times :  at  prefent  there  are  forty  in  England, 
and  twelve  in  Wales. 

THREE  of  thefe  counties,  Chefter,  Durham,  and  Lancafter, 
are  called  counties  palatine.  The  two  former  are  fuch  by  pre- 
fcription,  or  immemorial  cuftom ;  or,  at  leaft  as  old  as  the  Nor- 
man conqueft'3 :  the  latter  was  created  by  king  Edward  III,  in 
favour  of  Henry  Plantagenet,  firft  earl  and  then  duke  of  Lancaftsr, 
whofe  heirefs  John  of  Gant  the  king's  fon  had  married ;  and  after- 
wards confirmed  in  parliament,  to  honour  John  of  Gant  himfelf, 
whom,  on  the  death  of  his  father-in-law,  he  had  alfo  created 
duke  of  Lancafter  r.  Counties  palatine  are  fo  called  a  palatio ; 
becaufe  the  owners  thereof,  the  earl  of  Chefler,  the  bifhop  of 
Durham,  and  the  duke  of  Lancafter,  had  in  thofe  counties  jura 

v  LL.  Ediv.  c.  34.  '  Plowd.  215. 

«  Seld.  tit.  hon.z.j.  8- 

regalia. 


$.  4.  the  L  A  w  s  of  E  N  G  L  A  N  D.  117 

regalia,  as  fully  as  the  king  hath  in  his  palace ;    re  gale  m  potejla- 
tem  in  omnibus,  as  Bradlon  exprelfes  its.  They  might  pardon  trea- 
fons,  murders,  and  felonies;   they  appointed  all  judges  and  juf- 
tices  of  the  peace ;  all  writs  and  indictments  ran  in  their  names, 
as  in  other  counties  in  the  king's ;    and  all  offences  were  faid  to 
be  done  againft  their  peace,  and  not,  as  in  other  places,  contra 
pacem  domini  regis '.    And  indeed  by  the  antient  law,  in  all  pecu- 
liar jurifdiclions,  offences  were  faid  to  be  done  againft  his  peace 
in  whofe  court  they  were  tried ;  in  a  court  leet,  contra  pacem  do- 
mini;  in  the  court  of  a  corporation,  contra  pacem  balli'vorum ;  in 
the  meriff's  court  or  tourn,   contra  pacem  vice-comitisu.     Thefe 
palatine  privileges  were  in  all  probability  originally  granted  to  the 
counties  of  Chefter  and  Durham,  becaufe  they  bordered  upon 
enemies  countries,  Wales  and  Scotland  ;  in  order  that  the  owners, 
being  encouraged  by  fo  large  an  authority,  might  be  the  more 
watchful  in  it's  defence  ;  and  that  the  inhabitants,  having  juftice 
adminiftered  at  home,  might  not  be  obliged  to  go  out  of  the 
county,  and  leave  it  open  to  the  enemies  incurfions.     And  upon 
this  account  alfo  there  were  formerly  two  other  counties  palatine, 
Pembrokeshire  and  Hexhamfhire,    the  latter  now  united  with 
Northumberland  :    but  thefe  were  abolifhed  by  parliament,  the 
former    in    27  Hen.  VIII,    the   latter    in    14  Eliz.       And    in 
27  Hen. VIII  likewife,   the  powers  before-mentioned  of  owners 
of  counties  palatine  were  abridged  ;    the  reafon  for  their  conti- 
nuance in  a  manner  ceafing  :    though  ftill  all  writs  are  witneffed 
in  their  names,  and  all  forfeitures  for  treafon  by  the  common 
law  accrue  to  them  w. 

O  F  thefe  three,  the  county  of  Durham  is  now  the  only  one 
remaining  in  the  hands  of  a  fubjecl.  For  the  earldom  of  Chefter,. 
as  Camden  teftifies,  was  united  to  the  crown  by  Henry  III,  and 
has  ever  fince  given  title  to  the  king's  eldeft  fon.  And  the  county 
palatine,  or  duchy,  of  Lancafter  was  the  property  of  Henry  of 
Bolinbroke,  the  fon  of  John  of  Gant,  at  the  time  when  he  wrefted 

5  /.  3.  r.  8.  §.  4.  "  Seld.  in  Hengham  magn,  e,  Z. 

.  204.  w  4lnft.  205. 

the 


n8  Of  the  COUNTRIES  fubjeSl  to       IN  TROD. 

the  crown  from  king  Richard  II,  and  affumed  the  title  of  Henry  IV. 
But  he  was  too  prudent  to  fuffer  this  to  be  united  to  the  crown, 
left,  if  he  loft  one,  he  mould  lofe  the  other  alfo.  For,  as  Plow- 
den"  and  fir  Edward  Cokey  obferve,  "he  knew  he  had  the 
"  duchy  of  Lancafter  by  fure  and  indefealible  title,  but  that  his 
*'  title  to  the  crown  was  not  fo  affured  :  for  that  after  the  deceafe 
"  of  Richard  II  the  right  of  the  crown  was  in  the  heir  of  Lionel 
"  duke  of  Clarence,  J'econd  fon  of  Edward  III ;  John  of  Gant, 
"  father  to  this  Henry  IV,  being  but  the  fourth  fon."  And  there- 
fore he  procured  an  act  of  parliament,  in  the  firft  year  of  his 
reign,  to  keep  it  diftinct  and  feparate  from  the  crown,  and  fo  it 
defcended  to  his  fon,  and  grandfon,  Henry  V,  and  Henry  VI. 
Henry  VI  being  attainted  in  i  Edw.  IV,  this  duchy  was  declared 
in  parliament  to  have  become  forfeited  to  the  crown  %  and  at  the 
fame  time  an  act  was  made  to  keep  it  ftill  diftindt  and  feparate 
from  other  inheritances  of  the  crown.  And  in  i  Hen. VII  another 
ac~l  was  made  to  veft  the  inheritance  thereof  in  Henry  VII  and 
his  heirs ;  and  in  this  ftate,  fay  fir  Edward  Cokea  and  Lambardb, 
viz.  in  the  natural  heirs  or  pofterity  of  Henry  VII,  did  the  right 
of  the  duchy  remain  to  their  days ;  a  feparate  and  diftinct  inhe- 
ritance from  that  of  the  crown  of  England c. 

TH  E  ifle  of  Ely  is  not  a  county  palatine,  though  fometimes 
erroneoufly  called  fo,  but  only  a  royal  franchife  ;  the  bimop 
having,  by  grant  of  king  Henry  the  firft,  jura  regalia  within  the 
ille  of  Ely,  and  thereby  he  exercifes  a  j  urifdiction  over  all  caufes, 
as  well  criminal,  as  civil d. 

*  215.  remained  after  king  James's  abdication, 

y  4lnft.  205.  The  attainder  indeed  of  the  pretended 

2  iVentr.ijj.  prince  of  Wales  (by  ftatute -ijW.111.  0.3.) 

a  4  Inft.  206.  has  now  put  the  matter  out  of  doubt.  And 

b  Archeion.  233.  yet,  to  give  that  attainder  it's  full  force  in 

c  If  this  notion  of  Lambard  and  Coke  this  refpeft,  the  objedlof  it  mull  have  been 

be  well  founded,   (which  is  not  altogether  fuppcfed  legitimate,  elfe  he  had  no  intereft 

certain)  it  might  have  become  a  very  cu-  to  forfeit. 

rious  queflion  at  the  time  of  the  revolution         d  4  Inft.  220. 

in  1688,  in  whom  the  right  of  the  duchy 

THER  E 


§.4-  #&  LAWS  ^ENGLAND,  ng 

TH  ERE  are  alfo  counties  corporate ;  which  are  certain  cities 
and  towns,  fome  with  more,  fome  with  lefs  territory  annexed 
to  them  j  to  which  out  of  fpecial  grace  and  favour  the  kings  of 
England  have  granted  to  be  counties  of  themfelves,  and  not 
to  be  comprized  in  any  other  county ;  but  to  be  governed  by 
their  own  fheriffs  and  other  magiftrates,  fo  that  no  officers  of 
the  county  at  large  have  any  power  to  intermeddle  therein. 
Such  are  London,  York,  Briflol,  Norwich,  Coventry,  and  many 
others.  And  thus  much  of  the  countries  fubjecT:  to  the  laws  of 
England. 


COMMENTARIES 

ON     THE 

LAWS     OF     ENGLAND. 


BOOK     THE     FIRST. 

OF  THE   RIGHTS  OF  PERSONS. 


CHAPTER    THE     FIRST. 
OF  THE  ABSOLUTE  RIGHTS  OF  INDIVIDUALS. 


1 


"4  H  E  objects  of  the  laws  of  England  are  fo  very 
numerous  and  extenfive,  that,  in  order  to  conlider 
them  with  any  tolerable  eafe  and  perfpicuity,  it  will 
be  neceflary  to  diflribute  them  methodically,  under 
proper  and  diftindt  heads ;  avoiding  as  much  as  poflible  divifions 
too  large  and  comprehenfive  on  the  one  hand,  and  too  trifling 
and  minute  on  the  other ;  both  of  which  are  equally  productive 
of  confufion. 

Now, 


122  I7je    RIGHTS  BOOK!. 

Now,  as  municipal  law  is  a  rule  of  civil  conduct,  command- 
ing what  is  right,  and  prohibiting  what  is  wrong  j  or,  as  Cicero  % 
and  after  him  our  Bradtonb,  have  expreffed  it,  fan&io  jufta,  jubens 
bonejla  et  prohibens  contraria;  it  follows,  that  the  primary  and 
principal  objects  of  the  law  are  RIGHTS,  and  WRONGS.  In 
the  profecution  therefore  of  thefe  commentaries,  I  fliall  follow 
this  very  fimple  and  obvious  divifion  j  and  fliall  in  the  firft  place 
confider  the  rights  that  are  commanded,  and  fecondly  the  wrongs 
that  are  forbidden  by  the  laws  of  England. 

RIGHTS  are  however  liable  to  another  fubdivifion ;  being 
either,  firft,  thofe  which  concern  and  are  annexed  to  the  perfons 
of  men,  and  are  then  called  jura  perfonarum  or  the  rights  of  per- 
fons •,  or  they  are,  fecondly,  fuch  as  a  man  may  acquire  over  exter- 
nal objects,  or  things  unconnected  with  his  perfon,  which  are 
fliled  jura  rerum  or  the  rights  of  things.  Wrongs  alfo  are  divifible 
into,  firft,  private  wrongs,  which,  being  an  infringement  merely 
of  particular  rights,  concern  individuals  only,  and  are  called  civil 
injuries  ;  and  fecondly,  public  wrongs,  which,  being  a  breach  of 
general  and  public  rights,  affect  the  whole  community,  and  are 
called  crimes  and  mifdemefnors. 

TH  E  objects  of  the  laws  of  England  falling  into  this  fourfold 
divifion,  the  prefent  commentaries  will  therefore  confift  of  the 
four  following  parts  :  i.  'The  rights  of  perfons  ;  with  the  means 
whereby  fuch  rights  may  be  either  acquired  or  loft.  2.  The  rights 
of  things;  with  the  means  alfo  of  acquiring  and  lofing  them. 
3.  Private  wrongs,  or  civil  injuries;  with  the  means  of  redrefllng 
them  by  law.  4.  Public  wrongs,  or  crimes  and  mifdemefnors ; 
with  the  means  of  prevention  and  puriifliment. 

WE  are  now,  firft,  to  confider  the  rights  of  perfons ;  with 
the  means  of  acquiring  and  lofing  them. 

*   II  PhUipp.  12.  b  /.  I.  c.  3. 

Now 


Ch.  i.  of    PERSONS.  123 

Now  the  rights  of  perfons  that  are  commanded  to  be  obfer- 
ved  by  the  municipal  law  are  of  two  forts ;  firft,  fuch  as  are  due 
from  every  citizen,  which  are  ufually  called  civil  duties;  and, 
fecondly,  fuch  as  belong  to  him,  which  is  the  more  popular  ac- 
ceptation of  rights  or  jura.  Both  may  indeed  be  comprized  in 
this  latter  divifion ;  for,  as  all  focial  duties  are  of  a  relative  na- 
ture, at  the  fame  time  that  they  are  duefrotn  one  man,  or  fet  of 
men,  they  muft  alfo  be  due  to  another.  But  I  apprehend  it  will 
be  more  clear  and  eafy,  to  confider  many  of  them  as  duties  re- 
quired from,  rather  than  as  rights  belonging  to,  particular  per- 
fons. Thus,  for  inftance,  allegiance  is  ufually,  and  therefore  moft 
ealily,  confidered  as  the  duty  of  the  people,  and  prote<ftion  as  the 
duty  of  the  magiftrate ;  and  yet  they  are,  reciprocally,  the  rights 
as  well  as  duties  of  each  other.  Allegiance  is  the  right  of  the 
magiftrate,  and  protection  the  right  of  the  people. 

PERSONS  alfo  are  divided  by  the  law  into  either  natural  per- 
fons, or  artificial.  Natural  perfons  are  fuch  as  the  God  of  nature 
formed  us ;  artificial  are  fuch  as  are  created  and  devifed  by  human 
laws  for  the  purpofes  of  fociety  and  government ;  which  are  call- 
ed corporations  or  bodies  politic. 

THE  rights  of  perfons  confidered  in  their  natural  capacities 
are  alfo  of  two  forts,  abfolute,  and  relative.  Abfolute,  which 
are  fuch  as  appertain  and  belong  to  particular  men,  merely  as  in- 
dividuals or  fingle  perfons  :  relative,  which  are  incident  to  them 
as  members  of  fociety,  and  {landing  in  various  relations  to  each 
other.  The  firft,  that  is,  abfolute  rights,  will  be  the  fubjed  of 
the  prefent  chapter. 

BY  the  abfolute  fights-  of  individuals  we  mean  thofe  which 
are  fo  in  their  primary  and  ftridleft  fenfe ;  fuch  as  would  belong 
to  their  perfons  merely  in  a  ftate  of  nature,  and  which  every  man 
is  intitled  to  enjoy  whether  out  of  fociety  or  in  it.  But  with  re- 
gard to  the  abfolute  duties,  which  man  is  bound  to  perform  con- 

fidered 


124  7%*    RIGHTS  BOOK!. 

fidered  as  a  mere  individual,  it  is  not  to  be  expected  that  any  hu- 
man municipal  laws  mould  at  all  explain  or  enforce  them.  For 
the  end  and  intent  of  fuch  laws  being  only  to  regulate  the  beha- 
viour of  mankind,  as  they  are  members  of  fociety,  and  ftand  in 
various  relations  to  each  other,  they  have  confequently  no  bufi- 
nefs  or  concern  with  any  but  focial  or  relative  duties.  Let  a  man 
therefore  be  ever  fo  abandoned  in  his  principles,  or  vitious  in  his 
practice,  provided  he  keeps  his  wickednefs  to  himfelf,  and  does 
not  offend  againft  the  rules  of  public  decency,  he  is  out  of  the 
reach  of  human  laws.  But  if  he  makes  his  vices  public,  though 
they  be  fuch  as  feem  principally  to  affect  himfelf,  (as  drunken- 
nefs,  or  the  like)  they  then  become,  by  the  bad  example  they 
fet,  of  pernicious  effects  to  fociety  ;  and  therefore  it  is  then  the 
bufinefs  of  human  laws  to  correct  them.  Here  the  circumftance 
of  publication  is  what  alters  the  nature  of  the  cafe.  Public  fo- 
briety  is  a  relative  duty,  and  therefore  enjoined  by  our  laws  ; 
private  fobriety  is  an  abfolute  duty,  which,  whether  it  be  per- 
formed or  not,  human  tribunals  can  never  know ;  and  therefore 
they  can  never  enforce  it  by  any  civil  fanction.  But,  with  refpect 
to  rights,  the  cafe  is  different.  Human  laws  define  and  enforce 
as  well  thofe  rights  which  belong  to  a  man  confidered  as  an  in- 
dividual, as  thofe  which  belong  to  him  confidered  as  related  to 
others. 

FOR  the  principal  aim  of  fociety  is  to  protect  individuals  in 
the  enjoyment  of  thofe  abfolute  rights,  which  were  veiled  in 
them  by  the  immutable  laws  of  nature  ;  but  which  could  not  be 
preferred  in  peace  without  that  mutual  affiftance  and  intercourfe, 
which  is  gained  by  the  inftitution  of  friendly  and  focial  commu- 
nities. Hence  it  follows,  that  the  firfl  and  primary  end  of  human 
laws  is  to  maintain  and  regulate  thefe  abfolute  riehts  of  indivi- 

O  «/  ^ 

duals.  Such  rights  as  are  focial  and  relative  refult  from,  and  are 
pofterior  to,  the  formation  of  ftates  and  focieties  :  fo  that  to 
maintain  and  regulate  thefe  is  clearly  a  fubfequent  confideration. 
And  therefore  the.  principal  view  of  human  laws  is,  or  ought  al- 
ways to  be,  to  explain,  protect,  and  enforce  fuch  rights  as  are 

abfolute, 


Ch.  i.  of    PERSONS.  125 

abfolute,  which  in  themfelves  are  few  and  fimple  -,  and,  then, 
fuch  rights  as  are  relative,  which  arifing  from  a  variety  of  con- 
nexions, will  be  far  more  numerous  and  more  complicated.  Thefe 
will  take  up  a  greater  fpace  in  any  code  of  laws,  and  hence 
may  appear  to  be  more  attended  to,  though  in  reality  they  are 
not,  than  the  rights  of  the  former  kind.  Let  us  therefore  pro- 
ceed to  examine  how  far  all  laws  ought,  and  how  far  the  laws  of 
England  actually  do,  take  notice  of  thefe  abfolute  rights,  and 
provide  for  their  lafting  fecurity. 

TH  E  abfolute  rights  of  man,  confidered  as  a  free  agent,  en- 
dowed with  difcernment  to  know  good  from  evil,  and  with  power 
of  choofmg  thofe  meafures  which  appear  to  him  to  be  moil  de- 
firable,  are  ufually  fummed  up  in  one  general  appellation,  and 
denominated  the  natural  liberty  of  mankind.  This  natural  liberty 
confifts  properly  in  a  power  of  acting  as  one  thinks  fit,  without 
any  reftraint  or  control,  unlefs  by  the  law  of  nature ;  being  a 
right  inherent  in  us  by  birth,  and  one  of  the  gifts  of  God  to  man 
at  his  creation,  when  he  endued  him  with  the  faculty  of  free- 
will. But  every  man,  when  he  enters  into  fociety,  gives  up  a  part 
of  his  natural  liberty,  as  the  price  of  ib  valuable  a  purchafe  ;  and, 
in  confideration  of  receiving  the  advantages  of  mutual  commerce, 
obliges  himfelf  to  conform  to  thofe  laws,  which  the  community 
has  thought  proper  to  eftablilh.  And  this  fpecies  of  legal  obe- 
dience and  conformity  is  infinitely  more  defirable,  than  that  wild 
and  favage  liberty  which  is  facrificed  to  obtain  it.  For  no  man, 
that  conliders  a  moment,  would  wi£h  to  retain  the  abfolute  and 
uncontroled  power  of  doing  whatever  he  pleafes ;  the  confequence 
of  which  is,  that  every  other  man  would  alfo  have  the  fame 
power;  and  then  there  would  be  no  fecurity  to  individuals  in 
any  of  the  enjoyments  of  life.  Political  therefore,  or  civil,  li- 
berty, which  is  that  of  a  member  of  fociety,  is  no  other  than 
natural  liberty  fo  far  retrained  by  human  laws  (and  no  farther)  as 
is  neceilary  and  expedient  for  the  general  advantage  of  the  pub- 
lic c.  Hence  we  may  collect  that  the  law,  which  retrains  a 

c  Facultas  ejus,  qucti  citique  facere  libet,  niji  quid  jure  prohibetur.    Inft,  \.  3.1. 

man 


126  The    RIGHTS  BOOK  I. 

man  from  doing  mifchief  to  his  fellow  citizens,  though  it  dimi- 
niShes  the  natural,  increafes  the  civil  liberty  of  mankind  :  but 
every  wanton  and  caufelefs  reftraint  of  the  will  of  the  fubject, 
whether  practiced  by  a  monarch,  a  nobility,  or  a  popular  aSfem- 
bly,  is  a  degree  of  tyranny.  Nay,  that  even  laws  themfelves, 
whether  made  with  or  without  our  confent,  if  they  regulate  and 
conStrain  our  conduct  in  matters  of  mere  indifference,  without 
any  good  end  in  view,  are  laws  destructive  of  liberty  :  whereas  if 
any  public  advantage  can  arife  from  obferving  fuch  precepts,  the 
control  of  our  private  inclinations,  in  one  or  two  particular  points, 
will  conduce  to  preferve  our  general  freedom  in  others  of  more 
importance ;  by  Supporting  that  State,  of  fociety,  which  alone  can 
fecure  our  independence.  Thus  the  Statute  of  king  Edward  IVd, 
which  forbad  the  fine  gentlemen  of  thofe  times  (under  the  de- 
gree of  a  lord)  to  wear  pikes  upon  their  Shoes  or  boots  of  more 
than  two  inches  in  length,  was  a  law  that  favoured  of  oppreSTion ; 
becaufe,  however  ridiculous  the  faShion  then  in  ufe  might  appear, 
the  restraining  it  by  pecuniary  penalties  could  ferve  no  purpofe  of 
common  utility.  But  the  Statute  of  king  Charles  11%  which  pre- 
fcribes  a  thing  Seemingly  as  indifferent ;  viz.  a  drefs  for  the  dead, 
who  are  all  ordered  to  be  buried  in  woollen  ;  is  a  law  confiStent 
with  public  liberty,  for  it  encourages  the  Staple  trade,  on  which 
in  great  meaSure  depends  the  univerfal  good  of  the  nation.  So 
that  laws,  when  prudently  framed,  are  by  no  means  fubverSive 
but  rather  introductive  of  liberty ;  for  (as  Mr  Locke  has  well  ob- 
fervedf)  where  there  is  no  law,  there  is  no  freedom.  But  then, 
on  the  other  hand,  that  constitution  or  frame  of  government, 
that  fyStem  of  laws,  is  alone  calculated  to  maintain  civil  liberty, 
which  leaves  the  Subject  entire  maSter  of  his  own  conduct,  ex- 
cept in  thofe  points  wherein  the  public  good  requires  Some  direc- 
tion or  restraint. 

THE  idea  and  practice  of  this  political  or  civil  liberty  flourish 
in  their  higheSt  vigour  in  thefe  kingdoms,   where  it  falls  little 

d  jEdw.  IV.  c.  5.  f  on  Gov.  p.  2.  §.  57. 

e  30  Car.  II.  ft.  i.  c.  3. 

Short 


Ch.  I.  of    PERSONS.  127 

fhort  of  perfe&ion,  and  can  only  be  loft  or  deftroyed  by  the  folly 
or  demerits  of  it's  owner :  the  legiflature,  and  of  courfe  the 
laws  of  England,  being  peculiarly  adapted  to  the  prefervation  of 
this  inestimable  bleiling  even  in  the  meaneft  fubjedt.  Very  diffe- 
rent from  the  modern  constitutions  of  other  States,  on  the  conti- 
nent of  Europe,  and  from  the  genius  of  the  imperial  law  •,  which 
in  general  are  calculated  to  veft  an  arbitrary  and  defpotic  power 
of  controlling  the  actions  of  the  fubjecl  in  the  prince,  or  in  a  few 
grandees.  And  this  fpirit  of  liberty  is  fo  deeply  implanted  in  our 
conftitution,  and  rooted  even  in  our  very  foil,  that  a  Have  or  a 
negro,  the  moment  he  lands  in  England,  falls  under  the  pro- 
tection of  the  laws,  and  fo  far  becomes  a  freeman  ? ;  though  the 
mafter's  right  to  his  fervice  may  probably  Still  continue. 

TH  E  abfolute  rights  of  every  Englishman  (which,  taken  in  a 
political  and  exteniive  fenfe,  are  ufually  called  their  liberties)  as 
they  are  founded  on  nature  and  reatbn,  fo  they  are  coeval  with 
our  form  of  government;  though  fubjedl  at  times  to  fluctuate 
and  change  :  their  establishment  ( excellent  as  it  is )  being  flill 
human.  At  feme  times  we  have  feen  them  depreSTed  by  over- 
bearing and  tyrannical  princes ;  at  others  fo  luxuriant  as  even  to 
tend  to  anarchy,  a  worfe  State  than  tyranny  itlelf,  as  any  govern- 
ment is  better  than  none  at  all.  But  the  vigour  of  our  free  con- 
ftitution has  always  delivered  the  nation  from  thefe  embaraST- 
ments,  and,  as  foon  as  the  convulfions  confequent  on  the  Struggle 
have  been  over,  the  ballance  of  our  rights  and  liberties  has  fet- 
tled to  it's  proper  level ;  and  their  fundamental  articles  have  been 
from  time  to  time  afferted  in  parliament,  as  often  as  they  were 
thought  to  be  in  danger. 

FIR  ST,  by  the  great  charter  of  liberties,  which  was  obtain- 
ed, fword  in  hand,  from  king  John;  and  afterwards,  with  fome 
alterations,  confirmed  in  parliament  by  king  Henry  the  third,  his 
font.  Which  charter  contained  very  few  new  grants  ;  but,  as  fir 
Edward  Cokeh  obferves,  was  for  the  moft  part  declaratory  of  the 

8  Salk.  666.    Seech.  14.  h  2  Inft.  proem. 

principal 


128  The    RIGHTS  BOOK!. 

principal  grounds  of  the  fundamental  laws  of  England.  After- 
wards by  the  ftatute  called  confirmatio  cartarum l,  whereby  the 
great  charter  is  directed  to  be  allowed  as  the  common  law ;  all 
judgments  contrary  to  it  are  declared  void;  copies  of  it  are  or- 
dered to  be  fent  to  all  cathedral  churches,  and  read  twice  a  year 
to  the  people ;  and  fentence  of  excommunication  is  directed  to 
be  as  conftantly  denounced  againft  all  thole  that  by  word,  deed, 
or  counfel  a£t  contrary  thereto,  or  in  any  degree  infringe  it. 
Next  by  a  multitude  of  fubfequent  corroborating  flatutes,  (fir 
Edward  Coke,  I  think,  reckons  thirty  twok,)  from  the  firft  Ed- 
ward to  Henry  the  fourth.  Then,  after  a  long  interval,  by  the 
petition  of  right ;  which  was  a  parliamentary  declaration  of  the 
liberties  of  the  people,  aflented  to  by  king  Charles  the  firfl  in 
the  beginning  of  his  reign.  Which  was  clofely  followed  by  the 
ftill  more  ample  conceffions  made  by  that  unhappy  prince  to  his 
parliament,  before  the  fatal  rupture  between  them ;  and  by  the 
many  lalutary  laws,  particularly  the  habeas  corpus  a£t,  pafTed  un- 
der Charles  the  fecond.  To  thefe  fucceeded  the  bill  of  rights,  or 
declaration  delivered  by  the  lords  and  commons  to  the  prince  and 
princefs  of  Orange  13  February  1688  ;  and  afterwards  enadied  in 
parliament,  when  they  became  king  and  queen  :  which  declara- 
tion concludes  in  thefe  remarkable  words  :  "  and  they  do  claim, 
"  demand,  and  infift  upon  all  and  fingular  the  premifes,  as  their 
"  undoubted  rights  and  liberties."  And  the  aft  of  parliament  it- 
felf1  recognizes  "all  and  fingular  the  rights  and  liberties  afTerted 
"  and  claimed  in  the  faid  declaration  to  be  the  true,  antient,  and 
"indubitable  rights  of  the  people  of  this  kingdom."  Laftly, 
thefe  liberties  were  again  aflerted  at  the  commencement  of  the 
prefent  century,  in  the  aft  of  Jettkment m,  whereby  the  crown  was 
limited  to  his  prefent  majefty's  illuftrious  houfe,  and  fome  new 
provilions  were  added  at  the  fame  fortunate  aera  for  better  fecu- 
ring  our  religion,  laws,  and  liberties;  which  the  ftatute  declares 
to  be  "  the  'birthright  of  the  people  of  England  ;"  according  to 
the  antient  do&rine  of  the  common  law  n. 

'zjEdw.  I.  m  I2&  I3W.III.  c.2. 

k   2  Inft.  proem.  "  Plowd.  55. 

1   iW.  &M.  ft.  2.  c.  2.  TH  U  S 


Ch.  i.  0/"  PERSONS.  129 

THUS  much  for  the  declaration  of  our  rights  and  liberties. 
The  rights  themfelves,  thus  defined  by  thefe  feveral  ftatutes,  con- 
fift  in  a  number  of  private  immunities  ;  which  will  appear,  from 
what  has  been  premifed,  to  be  indeed  no  other,  than  either  that 
rejiduum  of  natural  liberty,  which  is  not  required  by  the  laws  of 
ibciety  to  be  facrificed  to  public  convenience ;  or  elfe  thofe  civil 
privileges,  which  fociety  hath  engaged  to  provide,  in  lieu  of  the 
natural  liberties  fo  given  up  by  individuals.  Thefe  therefore  were 
formerly,  either  by  inheritance  or  purchafe,  the  rights  of  all  man- 
kind ;  but,  in  moft  other  countries  of  the  world  being  now  more 
or  lefs  debafed  and  deftroyed,  they  at  prefent  may  be  faid  to  re- 
main, in  a  peculiar  and  emphatical  manner,  the  rights  of  the 
people  of  England.  And  thefe  may  be  reduced  to  three  princi- 
pal or  primary  articles ;  the  right  of  perfonal  fecurity,  the  right 
of  perfonal  liberty,  and  the  right  of  private  property  :  becaufe 
as  there  is  no  other  known  method  of  compulfion,  or  of  abridg- 
ing man's  natural  free  will,  but  by  an  infringement  or  diminu- 
tion of  one  or  other  of  thefe  important  rights,  the  prefervation 
of  thefe,  inviolate,  may  juflly  be  faid  to  include  the  prefervation 
of  our  civil  immunities  in  their  largeft  and  moft  extenfive  fenfe. 

I.  THE  right  of  perfonal  fecurity  confifts  in  a  perfon's  legal 
and  uninterrupted  enjoyment  of  his  life,  his  limbs,  his  body,  his 
health,  and  his  reputation. 

^H 

i .  LIFE  is  the  immediate  gift  of  God,  a  right  inherent  by 
nature  in  every  individual;  and  it  begins  in  contemplation  of  law 
as  foon  as  an  infant  is  able  to  ftir  in  the  mother's  womb.  For  if 
a  woman  is  quick  with  child,  and  by  a  potion,  or  otherwife, 
killeth  it  in  her  womb  ;  or  if  any  one  beat  her,  whereby  the 
child  dieth  in  her  body,  and  me  is  delivered  of  a  dead  child ; 
this,  though  not  murder,  was  by  the  antient  law  homicide  or 
manflaughter  °.  But  fir  Edward  Coke  doth  not  look  upon  this 

0  Si  aliquis  mulierem  praegnantem  percttjjerit,     maxime  Ji  fuerit  animatum,  farit  bomicitiium. 
"jel  ei  ijenenum  dederit,  per  quad  fecerit  abor-     Brafton.    /.  3.  r.  21. 
tivam;  Ji  puerj  eriutn  jam  format  urn  fuerit,  et  R_ 


130 


The    RIGHTS 


B.OOK  I. 


offence  in  quite  fb  atrocious  a  light,  but  merely  as  a  heinous  mif- 
demefnor p. 

AN  infant  in  venire  fa  mere,  or  in  the  mother^  womb,  is  fup- 
pofed  in  law  to  be  born  for  many  purpofes.  It  is  capable  of  ha- 
ving a  legacy,  or  a  furrender  of  a  copyhold  eftate  made  to  it.  It 
may  have  a  guardian  affigned  to  it q ;  and  it  is  enabled  to  have  an 
eftate  limited  to  it's  ufe,  and  to  take  afterwards  by  fuch  limita- 
tion, as  if  it  were  then  actually  born r.  And  in  this  point  the 
civil  law  agrees  with  ours s. 

2.  A  MAN'S  limbs  (by  which  for  the  prefent  we  only  un- 
derftand  thofe  members  which  may  be  ufeful  to  him  in  fight, 
and  the  lofs  of  which  only  amounts  to  mayhem  by  the  common 
law)  are  alfo  the  gift  of  the  wife  creator ;  to  enable  man  to  pro- 
tect himfelf  from  external  injuries  in  a  ftate  of  nature.  To  thefe 
therefore  he  has  a  natural  inherent  right ;  and  they  cannot  be 
wantonly  deftroyed  or  difabled  without  a  manifeil  breach  of  civil 
liberty. 

BOTH  the  life  and  limbs  of  a  man  are  of  fuch  high  value, 
in  the  eftimation  of  the  law  of  England,  that  it  pardons  even 
homicide  if  committedy<?  defendendo,  or  in  order  to  preferve  them. 
For  whatever  is  done  by  a  man,  to  fave  either  life  or  member,  is 
looked  upon  as  done  ^pon  the  higheft  neceffity  and  compulfion. 
Therefore  if  a  man  through  fear  of  death  or  mayhem  is  prevailed 
upon  to  execute  a  deed,  or  do  any  other  legal  aft ;  thefe,  though 
accompanied  with  all  other  the  requifite  folemnities,  may  be  af- 
terwards avoided,  if  forced  upon  him  by  a  well-grounded  appre- 
henfion  of  lofmg  his  life,  or  even  his  limbs,  in  cafe  of  his  non- 
compliance  '.  And  the  fame  is  alfo  a  fufficient  excufe  for  the  com- 
mirTion  of  many  mifdemefhors,  as  will  appear  in  the  fourth  book. 


"•  3lnft.  50. 

q  Stat.  1 2  Car.  II.  c.  24. 

1  Stat.  10  &  nW.  III.  c.  16. 


*  £>jfi  in  uterofunt,  injure  (i-vili  intelligun- 
tur  in  rer-.im  natura  effe,  cum  de  eorum  com:>;cdo 
agatur.  Ff.  1.5.  26. 

1  zlnft.  483. 

The 


Ch.  i.  of   PERSONS.  131 

The  conftraint  a  man  is  under  in  thefe  circumftances  is  called  in 
law  durefs,  from  the  Latin  durities,  of  which  there  are  two  forts  -, 
durefs  of  imprifonment,  where  a  man  actually  lofes  his  liberty, 
of  which  we  mall  prefently  fpeak ;  and  durefs  per  minas,  where 
the  hardfhip  is  only  threatened  and  impending,  which  is  that  we 
are  now  difcourfing  of.  Durefs  per  minas  is  either  for  fear  of  lofs 
of  life,  or  elfe  for  fear  of  mayhem,  or  lofs  of  limb.  And  this 
fear  mufl  be  upon  fufficient  reafon  ;  "  »0«,"  as  Bracton  exprefTes 
it,  "Jufpicio  citjujlibet  vani  et  meticulojl  hominis,  fed  fa/is  qui  pqflit 
"  cadere  in  virum  conjlantem;  tails  enim  debet  eff'e  metus,  qui  in  fe 
"  continent  vitae  periculum,  aut  corporis  cruciatum "."  A  fear  of 
battery,  or  being  beaten,  though  never  fo  well  grounded,  is  no 
durefs ;  neither  is  the  fear  of  having  one's  houfe  burned,  or  one's 
goods  taken  away  and  destroyed ;  becaufe  in  thefe  cafes,  mould 
the  threat  be  performed,  a  man  may  have  fatisfaction  by  recover- 
ing equivalent  damages  w  :  but  no  fuitable  atonement  can  be  made 
for  the  lofs  of  life,  or  limb.  And  the  indulgence  fhewn  to  a  man 
under  this,  the  principal,  fort  of  durefs,  the  fear  of  lofing  his 
life  or  limbs,  agrees  alfo  with  that  maxim  of  the  civil  law  ;  ig- 
nofcitur  ei  qui fangumem  fuum  qualiter  qualiter  redemptum  voluit*. 

THE  law  not  only  regards  life  and  member,  and  protects  every 
man  in  the  enjoyment  of  them,  but  alfo  furnifhes  him  with  every 
thing  necefTary  for  their  fupport.  For  there  is  no  man  fo  indigent 
or  wretched,  but  he  may  demand  a  fupply  fufficient  for  all  the 
neceflities  of  life  from  the  more  opulent  part  of  the  community, 
by  means  of  the  feveral  flatutes  enacted  for  the  relief  of  the  poor, 
of  which  in  their  proper  places.  A  humane  provision;  yet,  though 
dictated  by  the  principles  of  fociety,  difcountenanced  by  the  Ro- 
man laws.  For  the  edicts  of  the  emperor  Conftantine  command- 
ing the  public  to  maintain  the  children  of  thofe  who  were  unable 
to  provide  for  them,  in  order  to  prevent  the  murder  and  expofure 
of  infants,  an  inftitution  founded  on  the  fame  principle  as  our 

u  1 2.  r.^.  *  pf.  48. 21.  i. 

"   zlnft.  483. 

R  2  foundling 


132  7&?    RIGHTS  BOOK  I, 

foundling  hofpitals,  though  comprized  in  the  Theodofian  code y, 
were  rejected  in  Juftinian's  collection. 

THESE  rights,  of  life  and  member,  can  only  be  determined 
by  the  death  of  the  perfon ;  which  is  either  a  civil  or  natural 
death.  The  civil  death  commences  if  any  man  be  bammed  the 
realm  z  by  the  procefs  of  the  common  law,  or  enters  into  religion  j 
that  is,  goes  into  a  monastery,  and  becomes  there  a  monk  pro- 
fefled  :  in  which  cafes  he  is  abfolutely  dead  in  law,  and  his  next 
heir  {hall  have  his  eftate.  For,  fuch  banifhed  man  is  entirely  cut 
off  from  fociety ;  and  fuch  a  monk,  upon  his  profeffion,  renoun- 
ces folemnly  all  fecular  concerns  :  and  belides,  as  the  popifh  clergy 
claimed  an  exemption  from  the  duties  of  civil  life  and  the  com- 
mands of  the  temporal  magiftrate,  the  genius  of  the  Englifh 
law  would  not  fuffer  thole  perfons  to  enjoy  the  benefits  of  fociety, 
who  fecluded  themfelves  from  it,  and  refufed  to  fubmit  to  it's  re- 
gulations a.  A  monk  was  therefore  accounted  ceuiliter  mortuus,  and 
when  he  entered  into  religion  might,  like  other  dying  men,  make 
his  teftament  and  executors ;  or,  if  he  made  none,  the  ordinary 
might  grant  administration  to  his  next  of  kin,  as  if  he  were  ac- 
tually dead  inteftate.  And  fuch  executors  and  adminiftrators  had 
the  fame  power,  and  might  bring  the  fame  actions  for  debts  due 
to  the  religious,  and  were  liable  to  the  fame  actions  for  thofe  due 
from  him,  as  if  he  were  naturally  deceafed b.  Nay,  fo  far  has 
this  principle  been  carried,  that  when  one  was  bound  in  a  bond 
to  an  abbot  and  his  fucceffors,  and  afterwards  made  his  executors 
and  profeffed  himfelf  a  monk  of  the  fame  abbey,  and  in  procefs 
of  time  was  himfelf  made  abbot  thereof;  here  the  law  gave 
him,  in  the  capacity  of  abbot,  an  action  of  debt  againft  his  own 
executors  to  recover  the  money  due c.  In  Ihort,  a  monk  or  re- 
ligious was  fo  effectually  dead  in  law,  that  a  leafe  made  even  to 
a  third  perfon,  during  the  life  ( generally)  of  one  who  afterwards 
became  a  monk,  determined  by  fuch  his  entry  into  religion  :  for 

i  I.  11.  /.  27.  mile j  Chri/li ;  net  tenefcium pertinet  ad  eum  qui 

%  Co.  Litt.  133.  ncn  delet  gercre  off.cium. 
a  This  was  alfo  a  rule  in  the  feodal  law,          b  Litt.   §.  200. 
1.2.  t.  21.  dtjlit  ej/e  rniks feculi,  qui  faftus  eft          '  Co.  Litt.  133.  which 


Ch.  i.  of   PERSONS. 

which  reafon  leafes,  and  other  conveyances,  for  life,  are  ufually 
made  to  have  and  to  hold  for  the  term  of  one's  natural  life  d. 
But,  even  in  the  times  of  popery,  the  law  of  England  took  no 
cognizance  of  profejfion  in  any  foreign  country,  becaufe  the  fact 
could  not  be  tried  in  our  courts e  >  and  therefore,  fince  the  refor- 
mation, the  difability  is  held  to  be  abolimed  f. 

THIS  natural  life  being,  as  was  before  obferved,  the  imme- 
diate donation  of  the  great  creator,  cannot  legally  be  difpofed  of 
or  deftroyed  by  any  individual,  neither  by  the  perfon  himielf  nor 
by  any  other  of  his  fellow  creatures,  merely  upon  their  own  au- 
thority. Yet  neverthelefs  it  may,  by  the  divine  permiffion,  be 
frequently  forfeited  for  the  breach  of  thofe  laws  of  fociety,  which 
are  enforced  by  the  fanction  of  capital  punimments ;  of  the  na- 
ture, reftrictions,  expedience,  and  legality  of  which,  we  may 
hereafter  more  conveniently  enquire  in  the  concluding  book  of 
thefe  commentaries.  At  prefent,  I  (hall  only  obferve,  that  when- 
ever the  conjlitution  of  a  ftate  vefts  in  any  man,  or  body  of  men, 
a  power  of  destroying  at  pleafure,  without  the  direction  of  laws, 
the  lives  or  members  of  the  fubject,  fuch  constitution  is  in  the 
higheSt  degree  tyrannical :  and  that  whenever  any  laios  direct 
fuch  destruction  for  light  and  trivial  caufes,  fuch  laws  are  like- 
wife  tyrannical,  though  in  an  inferior  degree;  becaufe  here  the 
fubject  is  aware  of  the  danger  he  is  expofed  to,  and  may  by  pru- 
dent caution  provide -againSt  it.  The  Statute  law  of  England  does 
therefore  very  feldom,  and  the  common  law  does  never,  inflict 
any  puniShment  extending  to  life  or  limb,  unlefs  upon  the  higheft 
neceSfity  :  and  the  constitution  is  an  utter  Stranger  to  any  arbi- 
trary power  of  killing  or  maiming  the  fubject  without  the  exprefs 
warrant  of  law.  "  Nulhis  liber  homo,  fays  the  great  charter g,  all" 
"  quo  modo  dejlruatur,  niji  per  legale  judicium  parium  fuorum  aut 
"per  legem  terrae."  Which  words,  "  aliquo  modo  dejlruatur,"  ac- 
cording to  fir  Edward  Coke  h,  include  a  prohibition  not  only  of 
killing,  and  maiming,  but  alfo  of  torturing  (to  which  our  laws  are 

4  2  Rep.  48.    Co.  Litt.  132.  e  0.29. 

<=  Co.  Liu   132.  >•  2Inft.48. 

'iSaik.162.  ftrangers) 


134  The    RIGHTS  BOOK!. 

ftrangers)  and  of  every  opprefiion  by  colour  of  an  illegal  autho- 
rity. And  it  is  enadled  by  the  ftatute  5  Edw.  III.  c.  9.  that  no 
man  fhall  be  forejudged  of  life  or  limb,  contrary  to  the  great 
charter  and  the  law  of  the  land  :  and  again,  by  ftatute  28  Ed.  III. 
c.  3.  that  no  man  mall  be  put  to  death,  without  being  brought 
to  anfwer  by  due  procefs  of  law. 

3.  BESIDES  thofe  limbs  and  members  that  may  be  neceflary 
to  man,  in  order  to  defend  himfelf  or  annoy  his  enemy,  the  reft 
of  his  perfon  or  body  is  alfo  entitled,  by  the  fame  natural  right,  to 
fecurity  from  the  corporal  infults  of  menaces,  affaults,  beating, 
and  wounding ;  though  fuch  infults  amount  not  to  deftruftion  of 
life  or  member. 

4.  TH  E  prefervation  of  a  man's  health  from  fuch  practices  as 
may  prejudice  or  annoy  it,  and 

5.  TH  E  fecurity  of  his  reputation  or  good  name  from  the  arts 
of  detraction  and  flander,  are  rights  to  which  every  man  is  in- 
titled,  by  reafon  and  natural  juftice  ;  fince  without  thefe  it  is  im- 
poflible  to  have  the  perfect  enjoyment  of  any  other  advantage  or 
right.     But  thefe  three  laft  articles  (being  of  much  lefs  import- 
ance than  thofe  which  have  gone  before,  and  thofe  which  are  yet 
to  come)  it  will  fuffice  to  have  barely  mentioned  among  the  rights 
of  perfons ;   referring  the  more  minute  difcuffion  of  their  feveral 
branches,  to  thofe  parts  of  our  commentaries  which  treat  of  the 
infringement  of  thefe  rights,  under  the  head  of  perfonal  wrongs. 

II.  NEXT  to  perfonal  fecurity,  the  law  of  England  regards, 
aflerts,  and  preierves  the  perfonal  liberty  of  individuals.  This 
perfonal  liberty  connfls  in  the  power  of  loco-motion,  of  changing 
lituation,  or  removing  one's  perfon  to  whatfoever  place  one's  own 
inclination  may  direcl ;  without  imprifonment  or  restraint,  unlefs 
by  due  courfe  of  law.  Concerning  which  we  may  make  the  fame 
obfervations  as  upon  the  preceding  article;  that  it  is  a  right 
ftrictly  natural ;  that  the  laws  of  England  have  never  abridged  it 

without 


Ch.  i.  of  PERSONS. 

without  fufficient  caufe ;  and,  that  in  this  kingdom  it  cannot  ever 
be  abridged  at  the  mere  difcretion  of  the  magiftrate,  without  the 
explicit  permifiion  of  the  laws.  Here  again  the  language  of  the 
great  charter1  is,  that  no  freeman  mall  be  taken  or  imprifoned, 
but  by  the  lawful  judgment  of  his  equals,  or  by  the  law  of  the 
land.  And  many  fubfcquent  old  ftatutes  k  expreffly  direct,  that 
no  man  mall  be  taken  or  imprifoned  by  fuggeftion  or  petition  to 
the  king,  or  his  council,  unlefs  it  be  by  legal  indictment,  or  the 
procefs  of  the  common  law.  By  the  petition  of  right,  3  Car.  I, 
it  is  enacted,  that  no  freeman  mail  be  imprifoned  or  detained 
without  caufe  fhewn,  to  which  he  may  make  anfwer  according 
to  law.  By  1 6  Car.  I.  c.  10.  if  any  perfon  be  reftrained  of  his 
liberty  by  order  or  decree  of  any  illegal  court,  or  by  command 
of  the  king's  majefty  in  perfon,  or  by  warrant  of  the  council 
board,  or  of  any  of  the  privy  council ;  he  mail,  upon  demand, 
of  his  counfel,  have  a  writ  of  habeas  corpus,  to  bring  his  body 
before  the  court  of  king's  bench  or  common  pleas ;  who  mail 
determine  whether  the  caufe  of  his  commitment  be  juft,  and 
thereupon  do  as  to  juftice  fhall  appertain.  And  by  31  Car.  II. 
c.  2.  commonly  called  the  habeas  corpus  n^l,  the  methods  of  ob- 
taining this  writ  are  fo  plainly  pointed  out  and  enforced,  that, 
fo  long  as  this  ftatute  remains  unimpeached,  no  fubject  of  Eng- 
land can  be  long  detained  in  prifon,  except  in  thofe  cafes  in  which 
the  law  requires  and  juftifies  fuch  detainer.  And,  left  this  act 
mould  be  evaded  by  demanding  unreafonable  bail,  or  fureties  for 
the  prifoner's  appearance,  it  Is  declared  by  i  W.  &  M.  ft.  2.  c.  2. 
that  exceffive  bail  ought  not  to  be  required. 

O  F  great  importance  to  the  public  is  the  prefervation  of  this 
perfonal  liberty  :  for  if  once  it  were  left  in  the  power  of  any, 
the  higheft,  magiftrate  to  imprifon  arbitrarily  whomever  he  or  his 
officers  thought  proper,  (as  in  France  it  is  daily  practiced  by  the 
crown)  there  would  foon  be  an  end  to  all  other  rights  and  immu- 
nities. Some  have  thought,  that  unjuft  attacks,  even  upon  life, 
er  property,  at  the  arbitrary  will  of  the  magiftrate,  are  lefs  dan- 
'  c.  29.  *  5Ed\v.  III.  0.9.  zsEdw.  III.  11.5.  c.  4.  zSEdw.  III.  c.j. 

gerous 


136  The    RIGHTS  BOOK!. 

gerous  to  the  commonwealth,  than  fuch  as  are  made  upon  the 
perfonal  liberty  of  the  fubject.  To  bereave  a  man  of  life,  or  by 
violence  to  confifcate  his  eflate,  without  accufation  or  trial,  would 
be  fo  grofs  and  notorious  an  ac"l  of  defpotifm,  as  mufl  at  once 
Convey  the  alarm  of  tyranny  throughout  the  whole  kingdom. 
But  confinement  of  the  perfon,  by  fecretly  hurrying  him  to  goal, 
where  his  fufferings  are  unknown  or  forgotten,  is  a  lefs  public, 
a  lefs  flriking,  and  therefore  a  more  dangerous  engine  of  arbi- 
trary government.  And  yet  fometimes,  when  the  flate  is  in  real 
danger,  even  this  may  be  a  neceflary  meafure.  But  the  happinefs 
of  our  conflitution  is,  that  it  is  not  left  to  the  executive  power 
to  determine  when  the  danger  of  the  flate  is  fo  great,  as  to  ren- 
der this  meafure  expedient.  For  the  parliament  only,  or  legifla- 
tive  power,  whenever  it  fees  proper,  can  authorize  the  crown,  by 
fufpending  the  habeas  corpus  adl  for  a  fhort  and  limited  time,  to 
imprifon  fufpecled  perfons  without  giving  any  reafon  for  fo  doing. 
As  the  fenate  of  Rome  was  wont  to  have  recourfe  to  a  dictator, 
a  magiflrate  of  abfolute  authority,  when  they  judged  the  republic 
in  any  imminent  danger.  The  decree  of  the  fenate,  which  uiually 
preceded  the  nomination  of  this  magiflrate,  "  dent  operam  confu- 
"  les,  nequid  rejpublica  detrimenti  capiat,"  was  called  the  Jenatus 
confultum  ulthnae  necejjitatis.  In  like  manner  this  experiment 
ought  only  to  be  tried  in  cafes  of  extreme  emergency;  and  in 
thefe  the  nation  parts  with  it's  liberty  for  a  while,  in  order  to 
preferve  it  for  ever. 

Tn  E  confinement  of  the  perfon,  in  any  wife,  is  an  imprifon- 
ment.  So  that  the  keeping  a  man  againfl  his  will  in  a  private 
houfe,  putting  him  in  the  flocks,  arr-efling  or  forcibly  detaining 
him  in  the  flreet,  is  an  imprifonment '.  And  the  law  fo  much 
difcourages  unlawful  confinement,  that  if  a  man  is  under  durefs 
of  imprifonment,  which  we  before  explained  to  mean  a  compul- 
fion  by  an  illegal  reflraint  of  liberty,  until  he  feals  a  bond  or  .the 
like ;  he  may  allege  this  durefs,  and  avoid  the  extorted  bond. 
But  if  a  man  be  lawfully  imprilbned,  and  either  to  procure  his 

1  211111.589. 

difcharge 


Ch.  i.  of    PERSONS.  137 

difcharge,  or  on  any  other  fair  account,  feals  a  bond  or  a  deed, 
this  is  not  by  durefs  of  imprifonment,  and  he  is  not  at  liberty  to 
avoid  it  m.  To  make  imprifonment  lawful,  it  muft  either  be  by 
procefs  from  the  courts  of  judicature,  or  by  warrant  from  fome 
legal  officer  having  authority  to  commit  to  prifon ;  which  war- 
rant muft  be  in  writing,  under  the  hand  and  feal  of  the  magif- 
trate,  and  exprefs  the  caufes  of  the  commitment,  in  order  to  be 
examined  into  (if  necefTary)  upon  a  habeas  corpus.  If  there  be 
no  caufe  exprefled,  the  goaler  is  not  bound  to  detain  the  prifoner". 
For  the  law  judges  in  this  refpecT:,  faith  fir  Edward  Coke,  like 
Feftus  the  Roman  governor ;  that  it  is  unreafonable  to  fend  a  pri- 
foner, and  not  to  fignify  withal  the  crimes  alleged  againft  him. 

A  NATURAL  and  regular  confequence  of  this  perfonal  li- 
berty, is,  that  every  Englishman  may  claim  a  right  to  abide  in 
his  own  country  fo  long  as  he  pleafes  ;  and  not  to  be  driven  from 
it  unlefs  by  the  fentence  of  the  law.  The  king  indeed,  by  his 
royal  prerogative,  may  iflue  out  his  writ  no  exeat  regnum,  and 
prohibit  any  of  his  fubje&s  from  going  into  foreign  parts  with- 
out licence  °.  This  may  be  necelfary  for  the  public  fervice,  and 
fafeguard  of  the  commonwealth.  But  no  power  on  earth,  except 
the  authority  of  parliament,  can  fend  any  fubjecT:  of  England  out 
of  the  land  againft  his  will ;  no  not  even  a  criminal.  For  exile, 
or  tranfportation,  is  a  punifhment  unknown  to  the  common  law; 
and,  wherever  it  is  now  inrlidted,  it  is  either  by  the  choice  of  the 
criminal  himfelf,  to  efcape  a  capital  punifhment,  or  elfe  by  the 
exprefs  direction  of  fome  modern  acl:  of  parliament.  To  this 
purpofe  the  great  charter p  declares,  that  no  freeman  fhall  be  ba- 
nifhed,  unlefs  by  the  judgment  of  his  peers,  or  by  the  law  of 
the  land.  And  by  the  habeas  corpus  acl:,  31  Car.  II.  c.  2.  ( that 
fecond  magna  carta,  and  ftable  bulwark  of  our  liberties )  it  is 
enadted,  that  no  fubjecl:  of  this  realm,  who  is  an  inhabitant  of 
England,  Wales,  or  Berwick,  fhall  be  fent  prifoner  into  Scotland, 
Ireland,  Jerfey,  Guernfey,  or  places  beyond  the  feas ;  ( where 

m  zlnft.  482.  o  F.  N.  B.  85. 

n  Ibid.  52,  53.  P  c.  29. 

S  '  they 


138  The    RIGHTS  BOOK!. 

they  cannot  have  the  benefit  and  protection  of  the  common  law) 
but  that  all  fuch  imprifonments  fhall  be  illegal ;  that  the  perfon, 
who  fhall  dare  to  commit  another  contrary  to  this  law,  fhall  be 
difabled  from  bearing  any  office,  fhall  incur  the  penalty  of  a 
praemunire,  and  be  incapable  of  receiving  the  king's  pardon  : 
and  the  party  iufxering  fhall  alfo  have  his  private  action  againft 
the  perfon  committing,  and  all  his  aiders,  advifers  and  abettors, 
and  fhall  recover  treble  cofls;  befides  his  damages,  which  no  jury 
fhall  affefs  at  lefs  than  five  hundred  pounds. 

TH  E  law  is  in  this  refpecl:  fo  benignly  and  liberally  conftrued 
for  the  benefit  of  the  fubjecl:,  that,  though  within  the  realm  the 
king  may  command  the  attendance  and  fervice  of  all  his  liege- 
men, yet  he  cannot  fend  any  man  out  of  the  realm,  even  upon 
the  public  fervice ;  excepting  failors  and  foldiers,  the  nature  of 
whofe  employment  necefTarily  implies  an  exception  :  he  cannot 
even  conftitute  a  man  lord  deputy  or  lieutenant  of  Ireland  againft 
his  will,  nor  make  him  a  foreign  embaflador  q.  For  this  might 
in  reality  be  no  more  than  an  honorable  exile. 

III.  THE  third  abfolute  right,  inherent  in  every  Englifhman, 
is  that  of  property  :  which  confifts  in  the  free  ufe,  enjoyment, 
and  difpofal  of  all  his  acquifitions,  without  any  control  or  dimi- 
nution, fave  only  by  the  laws  of  the  land.  The  original  of  pri- 
vate property  is  probably  founded  in  nature,  as  will  be  more  fully 
explained  in  the  fecond  book  of  the  enfuing  commentaries  :  but 
certainly  the  modifications  under  which  we  at  prefent  find  it,  the 
method  of  conferving  it  in  the  prefent  owner,  and  of  tranflating 
it  from  man  to  man,  are  entirely  derived  from  fociety ;  and  are 
fome  of  thofe  civil  advantages,  in  exchange  for  which  every  in- 
dividual has  refigned  a  part  of  his  natural  liberty.  The  laws  of 
England  are  therefore,  in  point  of  honor  and  juftice,  extremely 
watchful  in  afcertaining  and  protecting  this  right.  Upon  this 
principle  the  great  charter r  has  declared  that  no  freeman  mall  be 
difTeifed,  or  diverted,  of  his  freehold,  or  of  his  liberties,  or  free 

9  2  Inft.  46.  '  c.  29. 

cufloms, 


Ch.  r.  of    PERSONS.  139 

cuftoms,  but  by  the  judgment  of  his  peers,  or  by  the  law  of  the 
land.  And  by  a  variety  of  antient  ftatutes s  it  is  enadted,  that  no 
man's  lands  or  goods  fliall  be  feifed  into  the  king's  hands,  againfl 
the  great  charter,  and  the  law  of  the  land ;  and  that  no  man 
fhall  be  difmherited,  nor  put  out  of  his  franchifes  or  freehold, 
unlefs  he  be  duly  brought  to  anfwer,  and  be  forejudged  by  courfe 
of  law ;  and  if  any  thing  be  done  to  the  contrary,  it  mall  be  re- 
dreffed,  and  holden  for  none. 

S  o  great  moreover  is  the  regard  of  the  law  for  private  pro- 
perty, that  it  will  not  authorize  the  leaft  violation  of  it ;  no,  not 
even  for  the  general  good  of  the  whole  community.  If  a  new 
road,  for  inflance,  were  to  be  made  through  the  grounds  of  a 
private  perfon,  it  might  perhaps  be  extenlively  beneficial  to  the 
public ;  but  the  law  permits  no  man,  or  fet  of  men,  to  do  this 
without  confent  of  the  owner  of  the  land.  In  vain  may  it  be 
urged,  that  the  good  of  the  individual  ought  to  yield  to  that  of 
the  community;  for  it  would  be  dangerous  to  allow  any  private 
man,  or  even  any  public  tribunal,  to  be  the  judge  of  this  com- 
mon good,  and  to  decide  whether  it  be  expedient  or  no.  Befides, 
the  public  good  is  in  nothing  more  effentially  interefted,  than  in 
the  protection  of  every  individual's  private  rights,  as  modelled 
by  the  municipal  law.  In  this  and  fimilar  cafes  the  legiflature 
alone  can,  and  indeed  frequently  does,  interpofe,  and  compel  the 
individual  to  acquiefce.  But  how  does  it  interpofe  and  compel  ? 
Not  by  abfolutely  ftripping  the  fubjedt  of  his  property  in  an  ar- 
bitrary manner;  but  by  giving  him  a  full  indemnification  and 
equivalent  for  the  injury  thereby  fuftained.  The  public  is  now 
confidered  as  an  individual,  treating  with  an  individual  for  an 
exchange.  All  that  the  legiflature  does  is  to  oblige  the  owner  to 
alienate  his  poflefTions  for  a  reafonable  price ;  and  even  this  is  an 
exertion  of  power,  which  the  legiflature  indulges  with  caution, 
and  which  nothing  but  the  legiflature  can  perform. 

'  SEdw.lII.  c.9.   25Edw.  III.  ft.  5.  c.4.    28  Edw.III.  c.  3. 

S  2  NOR 


140  TToe    RIGHTS  BOOK  I. 

NOR  is  this  the  only  infiance  in  which  the  law  of  the  land 
has  postponed  even  public  neceflity  to  the  facred  and  inviolable 
rights  of  private  property.  For  no  fubjedl  of  England  can  be 
constrained  to  pay  any  aids  or  taxes,  even  for  the  defence  of  the 
realm  or  the  fupport  of  government,  but  fuch  as  are  impofed  by 
his  own  confent,  or  that  of  his  reprefentatives  in  parliament. 
By  the  ftatute  25  Edw.  I.  c.  5  and  6.  it  is  provided,  that  the  king 
fhall  not  take  any  aids  or  tafks,  but  by  the  common  aflent  of  the 
realm.  And  what  that  common  aflent  is,  is  more  fully  explained 
by  34  Edw.  I.  ft.  4.  c.  i.  which1  enadls,  that  no  talliage  or  aid 
mail  be  taken  without  aflent  of  the  arch-bimops,  bifhops,  earls, 
barons,  knights,  burgefles,  and  other  freemen  of  the  land  :  and 
again  by  14 Edw.  III.  ft.  2.  c.  i.  the  prelates,  earls,  barons,  and 
commons,  citizens,  burgefles,  and  merchants  mall  not  be  charged 
to  make  any  aid,  if  it  be  not  by  the  common  aflent  of  the  great 
men  and  commons  in  parliament.  And  as  this  fundamental 
law  had  been  mamefully  evaded  under  many  fucceeding  princes, 
by  compulflve  loans,  and  benevolences  extorted  without  a  real 
and  voluntary  confent,  it  was  made  an  article  in  the  petition  of 
right  3  Car.  I,  that  no  man  fhall  be  compelled  to  yield  any  gift, 
loan,  or  benevolence,  tax,  or  fuch  like  charge,  without  common 
confent  by  aft  of  parliament.  And,  laftly,  by  the  ftatute  iW.&M. 
ft.  2.  c.  2.  it  is  declared,  that  levying  money  for  or  to  the  ufe  of 
the  crown,  by  pretence  of  prerogative,  without  grant  of  parlia- 
ment ;  or  for  longer  time,  or  in  other  manner,  than  the  fame  is 
or  fhall  be  granted,  is  illegal. 

I  N  the  three  preceding  articles  we  have  taken  a  fhort  view  of 
the  principal  abfolute  rights  which  appertain  to  every  Engliih- 
man.  But  in  vain  would  thefe  rights  be  declared,  afcertained, 
and  protected  by  the  dead  letter  of  the  laws,  if  the  constitution 

1  See  the  introduction  to  the  great  char-  34  Edw.  I,  ij  in  reality  nothing  more  than 

ter,   (edit.  Oxoa.J  fub  anno  1297  ;    wherein  a  fort  of  translation  into  Latin  of  the  ca/i- 

it  is  (hewn   that  this  ftatute  de  talliagio  nan  frmatio  cartarum,  25  Edw.  I,  which  was  ori- 

anctdendo,  fuppofed  to  have  been  made  in  ginally  published  in  the  Norman  language. 

had 


Ch.  i.  (^PERSONS.  141 

had  provided  no  other  method  to  fecure  their  actual  enjoyment. 
It  has  therefore  eftablifhed  certain  other  auxiliary  fubordinate 
rights  of  the  fubject,  which  ferve  principally  as  barriers  to  pro- 
tect and  maintain  inviolate  the  three  great  and  primary  rights,  of 
perfonal  fecurity,  perfonal  liberty,  and  private  property.  Thefe  are, 

1.  THE  constitution,  powers,    and  privileges  of  parliament, 
of  which  I  mail  treat  at  large  in  the  enfuing  chapter. 

2.  TH  E  limitation  of  the  king's  prerogative,    by  bounds  fo 
certain  and  notorious,  that  it  is  impoffible  he  mould  exceed  them 
without  the  confent  of  the  people.     Of  this  alfo  I  mall  treat  in 
it's  proper  place.  The  former  of  thefe  keeps  the  legislative  power 
in  due  health  and  vigour,   fo  as  to  make  it  improbable  that  laws 
Should  be  enacted  destructive  of  general  liberty  :    the  latter  is  a 
guard  upon  the  executive  power,   by  rcftraining  it  from  acting 
either  beyond  or  in  contradiction  to  the  laws,  that  are  framed  and 
eftablifhed  by  the  other. 

3.  A  THIRD  fubordinate  right  of  every  Englishman  is  that 
of  applying  to  the  courts  of  juftice  for  redrefs  of  injuries.   Since 
the  law  is  in  England  the  fupreme  arbiter  of  every  man's  life,  li- 
berty, and  property,  courts  of  juftice  muft  at  all  times  be  open 
to  the  Subject,  and  the  law  be  duly  adminiftred  therein.     The 
emphatical  words  of  magna  carta  u,  fpoken  in  the  perfon  of  the 
king,  who  in  judgment  of  law  (fays  fir  Edward  Cokew)  is  ever 
preient  and  repeating  them  in  all  his  courts,   are  thefe  ;    nulli 
ijendemns  ,    nulli  negabimus  ,    aut  differ  emus  reSlum  "vel  jujiitiam  : 
"  and  therefore  every  Subject,"  continues  the  fame  learned  au- 
thor,  "  for  injury  done  to  him  in  bonis,  in  terris,  vel  pcrfona,  by 
"  any  other  Subject,  be  he  ecclefiaftical  or  temporal  without  any 
"  exception,  may  take  his  remedy  by  the  courfe  of  the  law,  and 
"  have  juftice  and  right  for  the  injury  done  to  him,  freely  with- 
"  out  fale,  fully  without  any  denial,  and  fpeedily  without  delay." 
It  were  endlefs  to  enumerate  all  the  affirmative  acts  of  parliament 


c.  29. 

wherein 


142  The    RIGHTS  BOOK!. 

wherein  juftice  is  directed  to  be  done  according  to  the  law  of  the 
land  :.  and  what  that  law  is,  every  fubjedl  knows ;  or  may  know 
if  he  pleafes :  for  it  depends  not  upon  the  arbitrary  will  of  any 
judge ;  but  is  permanent,  fixed,  and  unchangeable,  unlefs  by  au- 
thority of  parliament.  I  mall  however  jufl  mention  a  few  nega- 
tive flatutes,  whereby  abufes,  perverfions,  or  delays  of  juftice, 
efpecially  by  the  prerogative,  are  reftrained.  It  is  ordained  by 
magna  carta*,  that  no  freeman  mall  be  outlawed,  that  is,  put  out 
of  the  protection  and  benefit  of  the  laws,  but  according  to  the 
law  of  the  land.  By  2  Edw.  III.  c.  8.  and  n  Ric.  II.  c.  10.  it 
is  ena&ed,  that  no  commands  or  letters  {hall  be  fent  under  the 
great  feal,  or  the  little  feal,  the  fignet,  or  privy  feal,  in  diftur- 
bance  of  the  law ;  or  to  difturb  or  delay  common  right  :  and, 
though  fuch -commandments  mould  come,  the  judges  (hall  not 
ceafe  to  do  right;  which  is  made  a  part  of  their  oath  by  1 8Edw.III. 
ft. 4.  And  by  iW.  &c  M.  ft.  2.  c.2.  it  is  declared,  that  the  pre- 
tended power  of  fufpending,  or  difpenfing  with  laws,  or  the  exe- 
cution of  laws,  by  regal  authority  without  confent  of  parlia- 
ment, is  illegal. 

NOT  only  the  fubftantial  part,  or  judicial  decifions,  of  the 
law,  but  alfo  the  formal  part,  or  method  of  proceeding,  cannot 
be  altered  but  by  parliament :  for,  if  once  thofe  outworks  were 
demoliflied,  there  would  be  an  inlet  to  all  manner  of  innovation 
in  the  body  of  the  law  itfelf.  The  king,  it  is  true,  may  eredl 
new  courts  of  juftice  ;  but  then  they  muft  proceed  according  to 
the  old  eftabliflied  forms  of  the  common  law.  For  which  reafon 
it  is  declared  in  the  ftatute  i6Car.  I.  c.io.  upon  the  diffolution  of 
the  court  of  ftarchamber,  that  neither  his  majefty,  nor  his  privy 
council,  have  any  jurifdidtion,  power,  or  authority  by  Englifh 
bill,  petition,  articles,  libel  (which  were  the  courfe  of  proceed- 
ing in  the  ftarchamber,  borrowed  from  the  civil  law)  or  by  any 
other  arbitrary  way  whatfoever,  to  examine,  or  draw  into  queftion, 
determine  or  dilpofe  of  the  lands  or  goods  of  any  fubjecls  of  this 
kingdom ;  but  that  the  fame  ought  to  be  tried  and  determined 
in  the  ordinary  courts  of  juftice,  and  by  courfe  of  laio. 

x  c. 29.  4.  IF 


Ch.  i.  of    PERSONS. 

4.  IF  there  mould  happen  any  uncommon  injury,  or  infringe- 
ment of  the  rights  before-mentioned,  which  the  ordinary  courfe 
of  law  is  too  defective  to  reach,  there  ftill  remains  a  fourth  fub- 
ordinate  right  appertaining  to  every  individual,  namely,  the  right 
of  petitioning  the  king,  or  either  houfe  of  parliament,  for  the 
redrefs  of  grievances.    In  RufTia  we  are  toldy  that  the  czar  Peter 
eftablifhed  a  law,  that  no  fubjecl  might  petition  the  throne,   till, 
he  had  firft  petitioned  two  different  minifters  of  ftate.      In  cafe 
he  obtained  juftice  from,  neither,  he  might  then  prefent  a  third 
petition  to  the  prince ;    but  upon  pain  of  death,  if  found  to  be 
in  the  wrong.  The  confequence  of  which  was,  that  no  one  dared 
to  offer  fuch  third  petition ;  and  grievances  feldom  falling  under 
the  notice  of  the  fovereign,  he  had  little  opportunity  to  redrefs 
them.    The  reftridtions,  for  fome  there  are,  which  are  laid  upoa 
petitioning  in  England,  are  of  a  nature  extremely  different ;  and 
while  they  promote  the  fpirit  of  peace,  they  are  no  check  upon 
that  of  liberty.     Care  only  muft  be  taken,  left,  under  the  pre- 
tence of  petitioning,  the  fubjecl  be  guilty  of  any  riot  or  tumult  j 
as  happened  in  the  opening  of   the    memorable  parliament  in 
1640  :  and,  to  prevent  this,  it  is  provided  by  the  ftatute  1 3 Car. II. 
ft.  i.  c.  5.  that  no  petition  to  the  king,  or  either  houfe  of  par- 
liament,  for  any  alterations  in  church  or  ftate,  mail  be  figned  by 
above  twenty  perfons,  unleis  the  matter  thereof  be  approved  by 
three  juftices  of  the  peace  or  the  major  part  of  the  grand  jury, 
in  the  country ;    and  in  London  by  the  lord  mayor,  aldermen, 
and  common  council :  nor  mall  any  petition  be  prefented  by  more 
than  two  perfons  at  a  time.     But,  under  thefe  regulations,  it  is 
declared  by  the  ftatute  i  W.  &  M.  ft. 2.  c.  2.  that  the  fubjed  hath 
a  right  to  petition ;  and  that  all  commitments  and  profecutions 
for  fuch  petitioning  are  illegal. 

5.  THE  fifth  and  laft  auxiliary  right  of  the  fubject,  that  I 
(hall  at  prefent  mention,  is  that  of  having  arms  for  their  defence>: 
fuitable  to  their  condition  and  degree,  and  fuch  as  are  allowed  by 

i  Montefq.  Sp.  L.  12.  26. 

law.. 


144  ^3e    RIGHTS  BOOK!. 

law.  Which  is  alfo  declared  by  the  fame  ftatute  i  W.  &  M. 
ft.  2.  c.  2.  and  is  indeed  a  public  allowance,  under  due  reftric- 
tions,  of  the  natural  right  of  refinance  and  felf-prefervation, 
when  the  fanctions  of  fociety  and  laws  are  found  insufficient  to 
reftrain  the  violence  of  oppreffion. 

I  N  thefe  feveral  articles  confift  the  rights,  or,  as  they  are  fre- 
quently termed,  the  liberties  of  Englishmen  :  liberties  more 
generally  talked  of,  than  thoroughly  underftood ;  and  yet  highly 
neceffary  to  be  perfectly  known  and  confidered  by  every  man  of 
rank  or  property,  left  his  ignorance  of  the  points  whereon  they  are 
founded  lliould  hurry  him  into  faction  and  licentioufnefs  on  the 
one  hand,  or  a  pufillanimous  indifference  and  criminal  fubmiffion 
on  the  other.  And  we  have  feen  that  thefe  rights  confift,  prima- 
rily, in  the  free  enjoyment  of  perfonal  fecurity,  of  perfonal  li- 
berty, and  of  private  property.  So  long  as  thefe  remain  inviolate, 
the  fubject  is  perfectly  free ;  for  every  fpecies  of  compulfive  ty- 
ranny and  oppreffion  muft  act  in  oppofition  to  one  or  other  of 
thefe  rights,  having  no  other  object  upon  which  it  can  poflibly 
be  employed.  To  preferve  thefe  from  violation,  it  is  neceffary 
that  the  conftitution  of  parliaments  be  fupported  in  it's  full  vigor; 
and  limits,  certainly  known,  be  fet  to  the  royal  prerogative.  And, 
laftly,  to  vindicate  thefe  rights,  when  actually  violated  or  attack- 
ed, the  fubjects  of  England  are  entitled,  in  the  firft  place,  to 
the  regular  adminiftration  and  free  courfe  of  juftice  in  the  courts 
of  law  j  next  to  the  right  of  petitioning  the  king  and  parliament 
for  redrefs  of  grievances ;  and  laftly  to  the  right  of  having  and 
ufmg  arms  for  felf-prefervation  and  defence.  And  all  thefe  rights 
and  liberties  it  is  our  birthright  to  enjoy  entire;  unlefs  where  the 
laws  of  our  country  have  laid  them  under  neceffary  reftraints. 
Reftraints  in  themfelves  fo  gentle  and  moderate,  as  will  appear 
upon  farther  enquiry,  that  no  man  of  fenle  or  probity  would 
wim  to  fee  them  flackened.  For  all  of  us  have  it  in  our  choice 
to  do  every  thing  that  a  good  man  would  defire  to  do  ;  and  are 
reftrained  from  nothing,  but  what  would  be  pernicious  either  to 
ourfelves  or  our  fellow  citizens.  So  that  this  review  of  our  fitua- 

tion 


Ch.  i.  of    PERSONS.  14.5 

tion  may  fully  juftify  the  obfervation  of  a  learned  French  author, 
who  indeed  generally  both  thought  and  wrote  in  the  fpirit  of 
genuine  freedom  * ;  and  who  hath  not  fcrupled  to  profefs,  even 
in  the  very  bofom  of  his  native  country,  that  the  Englifh  is  the 
only  nation  in  the  world,  where  political  or  civil  liberty  is  the 
direcl  end  of  it's  conftitution.  Recommending  therefore  to  the 
fludent  in  our  laws  a  farther  and  more  accurate  fearch  into  this 
extenfive  and  important  title,  I  fhall  clofe  my  remarks  upon  it 
with  the  expiring  wifh  of  the  famous  father  Paul  to  his  country, 

"ESTO    PERPETUA  !" 
,  z  Montefq.  Sp.  L.  11.5. 


146  Tfoe    RIGHTS  BOOK!. 


CHAPTER     THE     SECOND. 
OF     THE     PARLIAMENT. 


WE  are  next  to  treat  of  the  rights  and  duties  of  perfons,  as 
they  are  members  of  fociety,  and  ftand  in  various  rela- 
tions to  each  other.   Thefe  relations  are  either  public  or  private  : 
and  we  will  firft  confider  thofe  that  are  public. 

TH  E  moft  univerfal  public  relation,  by  which  men  are  con- 
nected together,  is  that  of  government ;  namely,  as  governors 
and  governed,  or,  in  other  words,  as  magiftrates  and  people.  Of 
magiftrates  alfo  fome  at&Jupreme,  in  whom  the  fovereign  power  of 
the  ftate  refides ;  others  are  fubordmate,  deriving  all  their  autho- 
rity from  the  fupreme  magiftrate,  accountable  to  him  for  their 
conduct,  and  acting  in  an  inferior  fecondary  fphere. 

I  N  all  tyrannical  governments  the  fupreme  magiftracy,  or  the 
right  both  of  making  and  of  enforcing  the  laws,  is  verted  in  one 
and  the  fame  man,  or  one  and  the  fame  body  of  men  ;  and 
wherever  thefe  two  powers  are  united  together,  there  can  be  no 
public  liberty.  The  magiftrate  may  enact  tyrannical  laws,  and 
execute  them  in  a  tyrannical  manner,  fince  he  is  pofleffed,  in 
quality  of  difpenfer  of  juftice,  with  all  the  power  which  he  as 
legiilator  thinks  proper  to  give  himfelf.  But,  where  the  legifla- 
tive  and  executive  authority  are  in  diftinct  hands,  the  former  will 
take  care  not  to  entruft  the  latter  with  fo  large  a  power,  as  may 
tend  to  the  fubverfion  of  it's  own  independence,  and  therewith 
of  the  liberty  of  the  fubject.  With  us  therefore  in  England  this 

fupreme 


Ch.  2,  of    PERSONS.  147 

fupreme  power  is  divided  into  two  branches  j  the  one  legiflative, 
to  wit,  the  parliament,  confifting  of  king,  lords,  and  commons ; 
the  other  executive,  confifting  of  the  king  alone.  It  will  be  the 
bufmefs  of  this  chapter  to  confider  the  Britifli  parliament ;  in 
which  the  legiflative  power,  and  (of  courfe)  the  fupreme  and  ab- 
folute  authority  of  the  ftate,  is  vefted  by  our  conftitution. 

TH  E  original  or  firft  inftitution  of  parliaments  is  one  of  thofc 
matters  that  lie  fo  far  hidden  in  the  dark  ages  of  antiquity,  that 
the  tracing  of  it  out  is  a  thing  equally  difficult  and  uncertain. 
The  word,  parliament,  itfelf  (or  colloquium,  as  fome  of  our  hifto- 
rians  tranflate  it)  is  comparatively  of  modern  date,  derived  from 
the  French,  and  fignifying  the  place  where  they  met  and  con- 
ferred together.  It  was  firfl  applied  to  general  affemblies  of  the 
ftates  under  Louis  VII  in  France,  about  the  middle  of  the  twelfth 
century a.  But  it  is  certain  that,  long  before  the  introduction  of 
the  Norman  language  into  England,  all  matters  of  importance 
were  debated  and  fettled  in  the  great  councils  of  the  realm.  A 
practice,  which  feems  to  have  been  univerfal  among  the  northern 
nations,  particularly  the  Germans  b ;  and  carried  by  them  into 
all  the  countries  of  Europe,  which  they  overran  at  the  diffolu- 
tion  of  the  Roman  empire.  Relics  of  which  conftitution,  under 
various  modifications  and  changes,  are  ftill  to  be  met  with  in  the 
diets  of  Poland,  Germany,  and  Sweden,  and  the  aflembly  of  the 
eftates  in  France0:  for  what  is  there  now  called  the  parliament  is 
only  the  fupreme  court  of  juftice,  compofed  of  judges  and  advo- 
cates ;  which  neither  is  in  practice,  nor  is  fuppofed  to  be  in  theory, 
a  general  council  of  the  realm. 

Wi  T  H  us  in  England  this  general  council  hath  been  held 
immemorially,  under  the  feveral  names  of  michd-fynolh,  or  great 
council,  michel-gemote  or  great  meeting,  and  more  frequently 

3  Mod.  Un.   Hift.xxiii.  307.      The  firft          b  De  minoriius  rebus  principes  confultant,  di 

mention  of  it  in  our  ftatute  law  is  in  the  majtribus  omnes.  Tac.  de  mar.  Germ.  c.  \\. 
preamble  to  the  ftatuteof  Weftm.i.  3Edw.I.         c  Thefe  were  aflembled  for  the  lad  time, 

A.  D.  1272.  J.D.i$6i.  SeeWhitelockeofParl.  €.72. 

T  2  ivittena-* 


148  "The    RIGHTS  BOOK!. 

'wittcna-gemote  or  the  meeting  of  wife  men.  It  was  alfo  ftiled  in 
Latin,  commune  concilium  regni,  magnum  concilium  regis ,  curia 
magna,  convent  us  magnatum  vel  procerum,  afjifa  genera/is,  and 
fometimes  communitas  regni  Angliae d.  We  have  inftances  of  it's 
meeting  to  order  the  affairs  of  the  kingdom,  to  make  new  laws, 
and  to  amend  the  old,  or,  as  Fleta e  exprefles  it,  "  ntruis  injuriis 
"  emerjis  nova  conjlituere  remedia"  fo  early  as  the  reign  of  Ina 
king  of  the  weft  Saxons,  Offa  king  of  the  Mercians,  and  Ethel- 
bert  king  of  Kent,  in  the  feveral  realms  of  the  heptarchy.  And, 
after  their  union,  the  mirrour  f  informs  us,  that  king  Alfred  or- 
dained for  a  perpetual  ufage,  that  thefe  councils  mould  meet 
twice  in  the  year,  or  oftener,  if  need  be,  to  treat  of  the  govern- 
ment of  God's  people ;  how  they  £hould  keep  themfelves  from 
fin,  mould  live  in  quiet,  and  fhould  receive  right.  Our  fucceed- 
ing  Saxon  and  Danifh  monarchs  held  frequent  councils  of  this 
fort,  as  appears  from  their  relpedlive  codes  of  laws ;  the  titles 
whereof  ufually  fpeak  them  to  be  enacted,  either  by  the  king 
with  the  advice  of  his  wittena-gemote,  or  wife  men,  as,  "  haec 
"funt  injlituta,  quae  Edgar  us  rex  conjilio  fapientum  Juorum  injli- 
"  tuit ;"  or  to  be  enadled  by  thofe  fages  with  the  advice  of  the 
king,  as,  "  /iaec  funt  judicia,  quae  fapientes  conjilio  regis  Ethelftani 
"  injlituerunt ;"  or  laftly,  to  be  enacted  by  them  both  together, 
as,  "  hae  funt  injlitutiones,  quas  rex  Edmundus  et  epifcopi  Jut  cum 
tl  fapientibus  fuis  injlituerunt" 

TH  E  R  E  is  alfo  no  doubt  but  thefe  great  councils  were  held 
regularly  under  the  firft  princes  of  the  Norman  line.  Glanvil, 
who  wrote  in  the  reign  of  Henry  the  fecond,  fpeaking  of  the 
particular  amount  of  an  amercement  in  the  fheriff's  court,  fays, 
it  had  never  yet  been  afcertained  by  the  general  aflife,  or  affem- 
bly,  but  was  left  to  the  cuftom  of  particular  counties  g.  Here 
the  general  affife  is  fpoken  of  as  a  meeting  well  known,  and  it's 

*  Glanvil.  7.13.  c.^z.  .'.9.  r.io.  —  Pref.          *  Quanta  e/e  deleat  per  nullam  ajjifam  ge- 
i)  Rep.  —  ?.  Inft.  526.  neralem  determination,  e/f,  fed  pro  ctnjuetudine 

'  I.  z.  c.  2.  fngulorum  comitatuum  deietur.  1.  9.  c.  1O. 

'c.i.  §.3, 

ftatutes 


Ch.  2.  of    PERSONS.  149 

Statutes  or  decisions  are  put  in  a  manifeSt  contradistinction  to  cuf- 
toms,  or  the  common  law.  And  in  Edward  the  third's  time  an 
act  of  parliament,  made  in  the  reign  of  William  the  conqueror, 
was  pleaded  in  the  cafe  of  the  abbey  of  St  Edmund's-bury,  and 
judicially  allowed  by  the  court  h. 

HENCE  it  indifputably  appears,  that  parliaments,  or  general 
councils,  are  coeval  with  the  kingdom  itfelf.  How  thofe  parlia- 
ments were  constituted  and  compofed,  is  another  queStion,  which 
has  been  matter  of  great  difpute  among  our  learned  antiquarians; 
and,  particularly,  whether  the  commons  were  fummoned  at  all  -t 
or,  if  fummoned,  at  what  period  they  began  to  form  a  diftinct 
aSTembly.  But  it  is  not  my  intention  here  to  enter  into  contro- 
versies of  this  fort.  I  hold  it  Sufficient  that  it  is  generally  agreed, 
that  in  the  main  the  constitution  of  parliament,  as  it  now  Stands, 
was  marked  out  fo  long  ago  as  the  feventeenth  year  of  king  John, 
A.D.lzi^,  in  the  great  charter  granted  by  that  prince ;  wherein 
he  promifes  to  fummon  all  arch-bifhops,  bifhops,  abbots,  earls, 
and  greater  barons,  perfonally ;  and  all  other  tenants  in  chief 
under  the  crown,  by  the  Sheriff  and  bailiffs ;  to  meet  at  a  cer- 
tp.in  place,  with  forty  days  notice,  to  aSFefs  aids  and  fcutages  when 
neceSlary.  And  this  constitution  has  fubfiSted  in  fact  at  leaSt  from 
the  year  1266,  49  Hen.  Ill :  there  being  Still  extant  writs  of  that 
date,  to  fummon  knights,  citizens,  and  burgeSTes  to  parliament. 
I  proceed  therefore  to  enquire  wherein  conSiSts  this  constitution  of 
parliament,  as  it  now  Stands,  and  has  Stood  for  the  fpace  of  at  leaSt 
five  hundred  years.  And  in  the  profecution  of  this  enquiry,  I 
mall  confider,  firSt,  the  manner  and  time  of  it's  affembling : 
fecondly,  it's  constituent  parts  :  thirdly,  the  laws  and  cuStoms 
relating  to  parliament,  considered  as  one  aggregate  body :  fourthly 
and  fifthly,  the  laws  and  cuStoms  relating  to  each  houfe,  Sepa- 
rately and  distinctly  taken  :  Sixthly,  the  methods  of  proceeding, 
and  of  making  Statutes,  in  both  houfes  :  and  laStly,  the  manner 
of  the  parliament's  adjournment,  prorogation,  ajid  dilTolution. 

h  Year  book,  21  Edw.  III.  60. 

I.  As 


15°  7$£    RIGHTS  BOOK  I. 

I.  As  to  the  manner  and  time  of  aflembling.  The  parliament 
is  regularly  to  be  fummoned  by  the  king's  writ  or  letter,  iffued 
out  of  chancery  by  advice  of  the  privy  council,  at  leaft  forty 
days  before  it  begins  to  fit.  It  is  a  branch  of  the  royal  preroga- 
tive, that  no  parliament  can  be  convened  by  it's  own  authority, 
or  by  the  authority  of  any,  except  the  king  alone.  And  this 
prerogative  is  founded  upon  very  good  reafon.  For,  fuppofing  it 
had  a  right  to  meet  fpontaneouily,  without  being  called  together, 
it  is  impoflible  to  conceive  that  all  the  members,  and  each  of 
the  houfes,  would  agree  unanimoufly  upon  the  proper  time  and 
place  of  meeting  :  and  if  half  of  the  members  met,  and  half 
abfented  themfelves,  who  mall  determine  which  is  really  the  le- 
giflative  body,  the  part  affembled,  or  that  which  flays  away  ?  It 
is  therefore  necefTary  that  the  parliament  mould  be  called  together 
at  a  determinate  time  and  place  :  and  highly  becoming  it's  dig- 
nity and  independence,  that  it  mould  be  called  together  by  none 
but  one  of  it's  own  confHtuent  parts  :  and,  of  the  three  confK- 
tuent  parts,  this  office  can  only  appertain  to  the  king ;  as  he  is 
a  fmgle  perfon,  whofe  will  may  be  uniform  and  fteady ;  the  firfl 
perfon  in  the  nation,  being  fnperior  to  both  houfes  in  dignity ; 
and  the  only  branch  of  the  legiflature  that  has  a  feparate  exiftence, 
and  is  capable  of  performing  any  act  at  a  time  when  no  parlia- 
ment is  in  being '.  Nor  is  it  an  exception  to  this  rule  that,  by 
fome  modern  ftatutes,  on  the  demife  of  a  king  or  queen,  if  there 
be  then  no  parliament  in  being,  the  laft  parliament  revives,  and 
is  to  fit  again  for  fix  months,  unlefs  diffolved  by  the  fuccefTor  : 
for  this  revived  parliament  mufl  have  been  originally  fummoned 
by  the  crown. 

1  By  motives  fomewhat  fimilar  to  thefe  the  which  their  hiftorians  have  afligned  thefe, 

republic  of  Venice  was  actuated,  when  to-  as  the  principal,  reafon s.    i.  The  propriety 

wards  the  end  cf  the  feventh  century  it  abo-  of  having  the  executive  power  a  part  of  the 

lifhed  the  tribunes  of  the  people,  who  were  legiflative,    or  fenate  ;    to  which    the  for- 

annually  chofcn  by   the  feveral  diftrifts  of  mer  annual  magiftrates  were  not  admitted, 

the  Venetian    territory,    and    conftituted  a  2.  The  neceffity  of  having  a  fmgle  perfon 

doge  in  their  flead ;   in  whom  the  executive  to  convoke  the  great  council  when  fepara- 

power  of  the  ftate  at  prefent  refides.    For  ted.    (Mod.  Un.  Hift.  xxvii.  15.) 

IT 


Ch.  2.  of    PERSONS.  151 

.IT  is  true,  that  by  a  ftatute,  16  Car.  I.  c.  i.  it  was  enacted, 
that  if  the  king  neglected  to  call  a  parliament  for  three  years, 
the  peers  might  aflemble  and  iffue  out  writs  for  the  choofing  one ; 
and,  in  cafe  of  neglect  of  the  peers,  the  conftituents  might  meet 
and  elect  one  themfelves.  But  this,  if  ever  put  in  practice,  would 
have  been  liable  to  all  the  inconveniences  I  have  juft  now  ftated; 
and  the  aft  itfelf  was  efleemed  fo  highly  detrimental  and  inju- 
rious to  the  royal  prerogative,  that  it  was  repealed  by  ftatute 
j  6Car. II.  c.  i .  From  thence  therefore  no  precedent  can  be  drawn. 

IT  is  alfo  true,  that  the  convention-parliament,  which  refto- 
red  king  Charles  the  fecond,  met  above  a  month  before  his  re- 
turn ;  the  lords  by. their  own  authority,  and  the  commons  in 
purfuance  of  writs  iflfued  in  the  name  of  the  keepers  of  the  li- 
berty of  England  by  authority  of  parliament :  and  that  the  faid 
parliament  fat  till  the  twenty  ninth  of  December,  full  feven 
months  after  the  restoration  ;  and  enacted  many  laws,  feveral  of 
which  are  ftill  in  force.  But  this  was  for  the  neceffity  of  the 
thing,  which  fuperfedes  all  law ;  for  if  they  had  not  fo  met,  it 
was  morally  impoflible  that  the  kingdom  mould  have  been  fettled 
in  peace.  And  the  firft  thing  done  after  the  king's  return,  was  to 
pafs  an  act  declaring  this  to  be  a  good  parliament,  notwithftand- 
ing  the  defect  of  the  king's  writs  J.  So  that,  as  the  royal  prero- 
gative was  chiefly  wounded  by  their  fo  meeting,  and  as  the  king 
himfelf,  who  alone  had  a  right  to  object,  consented  to  wave  the 
objection,  this  cannot  be  drawn  into  an  example  in  prejudice  of 
the  rights  of  the  crown.  Befides  we  mould  alfo  remember,  that 
it  was  at  that  time  a  great  doubt  among  the  lawyers  k,  whether 
even  this  healing  act  made  it  a  good  parliament ;  and  held  by 
very  many  in  the  negative  :  though  it  feems  to  have  been  too 
nice  afcruple.  And  yet,  out  of  abundant  caution,  it  was  thought 
neceffary  to  confirm  it's  acts  in  the  next  parliament,  by  ftatute 
13  Car.  II.  c.  7,  &  c'.  14. 

J  Stat.  izCar.  II.  c.  i.  k  i  Sid.  i. 

IT 


152  The    RIGHTS  BOOK!, 

IT  is  like  wile  true,  that  at  the  time  of  the  revolution,  A.D.  1688, 
the  lords  and  commons  by  their  own  authority,  and  upon  the 
fummons  of  the  prince  of  Orange,  (afterwards  king  William) 
met  in  a  convention  and  therein  difpofed  of  the  crown  and  king- 
dom. But  it  muft  be  remembered,  that  this  aflembling  was  upon 
a  like  principle  of  neceflity  as  at  the  restoration  ;  that  is,  upon 
a  full  conviction  that  king  James  the  fecond  had  abdicated  the 
government,  and  that  the  throne  was  thereby  vacant :  which 
iuppoiition  of  the  individual  members  was  confirmed  by  their 
concurrent  refolution,  when  they  actually  came  together.  And 
in  fuch  a  cafe  as  the  palpable  vacancy  of  a  throne,  it  follows  ex 
necej/itate  rcl,  that  the  form  of  the  royal  writs  muft  be  laid  afide, 
otherwife  no  parliament  can  ever  meet  again.  For,  let  us  put 
another  pomble  cafe,  and  fuppofe,  for  the  fake  of  argument,  that 
the  whole  royal  line  mould  at  any  time  fail,  and  become  extinct, 
which  would  indisputably  vacate  the  throne  :  in  this  fituation  it 
feems  reafonable  to  prefume,  that  the  body  of  the  nation,  con- 
lifting  of  lords  and  commons,  would  have  a  right  to  meet  and 
fettle  the  government ;  otherwife  there  muft  be  no  government  at 
all.  And  upon  this  and  no  other  principle  did  the  convention  in 
1688  aflemble.  The  vacancy  of  the  throne  was  precedent  to  their 
meeting  without  any  royal  fummons,  not  a  confequence  of  it. 
They  did  not  aflemble  without  writ,  and  then  make  the  throne 
vacant ;  but  the  throne  being  previoufly  vacant  by  the  king's  ab- 
dication, they  aflembled  without  writ,  as  they  muft  do  if  they 
aflembled  at  all.  Had  the  throne  been  full,  their  meeting  would 
not  have  been  regular ;  but,  as  it  was  really  empty,  fuch  meet- 
ing became  abfolutely  neceffary.  And  accordingly  it  is  declared 
by  ftatute  iW.  &  M.  ft.  i.  c.  i.  that  this  convention  was  really 
the  two  houfes  of  parliament,  notwithftanding  the  want  of  writs 
or  other  defects  of  form.  So  that,  notwithftanding  thefe  two 
capital  exceptions,  which  were  juftifiable  only  on  a  principle  of 
neceflity,  (and  each  of  which,  by  the  way,  induced  a  revolution 
in  the  government)  the  rule  laid  down  is  in  general  certain,  that 
the  king,  only,  can  convoke  a  parliament. 

AND 


Ch.  2.  of    PERSONS. 

AND  this  by  the  antient  ftatutes  of  the  realm ',  he  is  bound 
to  do  every  year,  or  oftener,  if  need  be.  Not  that  he  is,  or  ever 
was,  obliged  by  thefe  flatutes  to  call  a  new  parliament  every  year ; 
but  only  to  permit  a  parliament  to  fit  annually  for  the  redrefs  of 
grievances,  and  difpatch  of  bufmefs,  if  need  be.  Thefe  laft  words 
are  fo  loofe  and  vague,  that  fuch  of  our  monarchs  as  were  encli- 
ned  to  govern  without  parliaments,  neglected  the  convoking  them, 
fometimes  for  a  very  confiderable  period,  under  pretence  that 
there  was  no  need  of  them.  But,  to  remedy  this,  by  the  ftatute 
1 6  Car.  II.  c.  i.  it  is  enacted,  that  the  fitting  and  holding  of 
parliaments  fhall  not  be  intermitted  above  three  years  at  the  moft. 
And  by  the  ftatute  i  W.  &  M.  ft.  2.  c.  2.  it  is  declared  to  be  one 
of  the  rights  of  the  people,  that  for  redrefs  of  all  grievances, 
and  for  the  amending,  ftrengthening,  and  preferving  the  laws, 
parliaments  ought  to  be  held  frequently.  And  this  indefinite  fre- 
quency is  again  reduced  to  a  certainty  by  ftatute  6  W.  &  M.  c.  2. 
which  enacts,  as  the  ftatute  of  Charles  the  fecond  had  done  be- 
fore, that  a  new  parliament  fhall  be  called  within  three  years  m 
after  the  determination  of  the  former. 

II.  TH  E  conftituent  parts  of  a  parliament  are  the  next  objects 
of  our  enquiry.  And  thefe  are,  the  king's  majefty,  fitting  there 
in  his  royal  political  capacity,  and  the  three  eftates  of  the  realm ; 
the  lords  fpiritual,  the  lords  temporal,  (who  lit,  together  with 
the  king,  in  one  houfe)  and  the  commons,  who  fit  by  themfelves 
in  another.  And  the  king  and  thefe  three  eftates,  together,  form 
the  great  corporation  or  body  politic  of  the  kingdom  n,  of  which 
the  king  is  faid  to  be  caput,  principium,  ct  Jim's.  For  upon  their 
coming  together  the  king  meets  them,  either  in  perfon  or  by  re- 
prefentation  ;  without  which  there  can  be  no  beginning  of  a  par- 
liament0; and  he  alfo  has  alone  the  power  of  diflblving  them. 

1  4Edw.III.  c.  14.    36Edw.  III.  c.  10.  Un.  Hilt,  xxxiii.  15. 

m  This  is  the  fame  period,  that  is  allowed         n  4  Inft   i,  2.  Stat.  i  Eliz.  c.  3.    Hale  of 

in  Sweden   for    intermitting   their  general  Parl.  i. 
diets,  or  parliamentary  aiTemblies.     Mod.         °  4  Inft.  6. 

U  IT 


154-  eH>s    RIGHTS  BOOK!. 

I  T  is  highly  necefTary  for  preferving  the  ballance  of  the  con- 
ftitution,  that  the  executive  power  mould  be  a  branch,  though 
not  the  whole,  of  the  legillature.  The  total  union  of  them,  we 
have  feen,  would  be  productive  of  tyranny  ;  the  total  disjunction 
of  them  for  the  prefent,  would  in  the  end  produce  the  fame 
effedls,  by  cauiing  that  union,  againft  which  it  feems  to  provide. 
The  legiflature  would  foon  become  tyrannical,  by  making  conti- 
nual encroachments,  and  gradually  affuming  to  itfelf  the  rights 
of  the  executive  power.  Thus  the  long  parliament  of  Charles 
the  firft,  while  it  adled  in  a  confHtutional  manner,  with  the  royal 
concurrence,  redrefled  many  heavy  grievances  and  eftablilhed 
many  falutary  laws.  But  when  the  two  houfes  affumed  the  power 
of  legillation,  in  exclufion  of  the  royal  authority,  they  foon  after 
arTumed  likewife  the  reins  of  adminiftration  ;  and,  in  confequence 
of  thefe  united  powers,  overturned  both  church  and  ftate,  and 
eftablifhed  a  worfe  oppreffion  than  any  they  pretended  to  remedy. 
To  hinder  therefore  any  fuch  encroachments,  the  king  is  himfelf 
a  part  of  the  parliament  :  and,  as  this  is  the  reafon  of  his  being 
fo,  very  properly  therefore  the  fliare  of  legillation,  which  the 
constitution  has  placed  in  the  crown,  confifts  in  the  power  of  re- 
jeSllng.,  rather  than  refolding ;  this  being  fufficient  to  anfwer  the 
end  propofed.  For  we  may  apply  to  the  royal  negative,  in  this 
inftance,  what  Cicero  obferves  of  the  negative  of  the  Roman 
tribunes,  that  the  crown  has  not  any  power  of  doing  wrong,  but 
merely  of  preventing  wrong  from  being  done  p.  The  crown  can- 
not begin  of  itfelf  any  alterations  in  the  prefent  eftablifhed  law  ; 
but  it  may  approve  or  difapprove  of  the  alterations  fuggefted  and 
confented  to  by  the  two  houfes.  -The  legiflative  therefore  cannot 
abridge  the  executive  power  of  any  rights  which  it  now  has  by 
law,  without  it's  own  confent;  fince  the  law  muft  perpetually 
ftand  as  it  now  does,  unlefs  all  the  powers  will  agree  to  alter  it. 
And  herein  indeed  confifts  the  true  excellence  of  the  Englifh 
government,  that  all  the  parts  of  it  form  a  mutual  check  upon 

*  S«/;'«  —  trilunis  fldis  fua  Icge  injuriae  fariendae  potf/latem  at/emit,  auxilii  fercndi  reli- 
quit.    de  LL.  •*,.<). 

each 


Ch.  2.  of    PERSONS.  155 

each  other.  In  the  legislature,  the  people  are  a  check  upon  the 
nobility,  and  the  nobility  a  check  upon  the  people ;  by  the  mu- 
tual privilege  of  rejecting  what  the  other  has  refolved  :  while 
the  king  is  a  check  upon  both,  which  preferves  the  executive 
power  from  encroachments.  And  this  very  executive  power  is 
again  checked  and  kept  within  due  bounds  by  the  two  houfes, 
through  the  privilege  they  have  of  enquiring  into,  impeaching, 
and  puniming  the  conduct  (not  indeed  of  the  king q,  which  would 
deftroy  his  conftitutional  independence  j  but,  which  is  more  be- 
neficial to  the  public)  of  his  evil  and  pernicious  counfellors. 
Thus  every  branch  of  our  civil  polity  fupports  and  is  fupported, 
•regulates  and  is  regulated,  by  the  reft  ;  for  the  two  houfes  na- 
turally drawing  in  two  directions  of  oppofite  intereft,  and  the 
prerogative  in  another  ftill  different  from  them  both,  they  mu- 
tually keep  each  other  from  exceeding  their  proper  limits  ;  while 
the  whole  is  prevented  from  feparation,  and  artificially  connected 
together  by  the  mixed  nature  of  the  crown,  which  is  a  part  of 
the  legiilative,  and  the  fole  executive  magiftrate.  Like  three  dif- 
tinct  powers  in  mechanics,  they  jointly  impel  the  machine  of 
government  in  a  direction  different  from  what  either,  acting  by 
itfelf,  would  have  done  ;  but  at  the  fame  time  in  a  direction  par- 
taking of  each*  and  formed  out  of  all ;  a  direction  which  confli- 
tutes  the  true  line  of  the  liberty  and  happinefs  of  the  community. 

L  E  T  us  now  confider  thefe  conftituent  parts  of  the  fovereign 
power,  or  parliament,  each  in  a  feparate  view.  The  king's  ma- 
jefty  will  be  the  fubject  of  the  next,  and  many  fubfequent  chap- 
ters, to  which  we  muft  at  prefent  refer. 

THE  next  in  order  are  the  fpiritual  lords.  Thefe  confift  of 
two  arch-bimops,  and  twenty  four  bifhops  ;  and,  at  the  diflb- 
lution  of  monafteries  by  Henry  VIII,  confifted  likewife  of  twenty 
fix  mitred  abbots,  and  two  priors  r  :  a  very  confiderable  body, 
and  in  thofe  times  equal  in  number  to  the  temporal  nobility f. 

•i  Stat.  i  2  Car.  II.  c.  30.  f  Co.  Litt.  97. 

'  Seld.  tit,  hon.z.j.zj. 

U  2  All 


156  The    RIGHTS  BOOK!. 

All  thefe  hold,  or  are  fuppofed  to  hold,  certain  antient  baronies 
under  the  king  :  for  William  the  conqueror  thought  proper  to 
change  the  fpiritual  tenure,  of  frankalmoign  or  free  alms,  under 
which  the  bifhops  held  their  lands  during  the  Saxon  government, 
into  the  feodal  or  Norman  tenure  by  barony  ;  which  fubjefted 
their  eftates  to  all  civil  charges  and  aflellments,  from  which  they 
were  before  exempt s :  and,  in  right  of  fucceflion  to  thofe  baro- 
nies, which  were  unalienable  from  their  reipeclive  dignities,  the 
bifhops  aad  abbots  obtained  their  feats  in  the  houie  of  lords  *. 
But  though  thefe  lords  fpirituai  are  in  the  eye  of  the  law  a  diftin<£l 
eftate  from  the  lords  temporal,  and  are  fo  diftinguifhed  in  moft  of 
our  acts  of  parliament,  yet  in  practice  they  are  ufually  blended 
together  under  the  one  name  of  the  lords  ;  they  intermix  in  their 
votes ;  and  the  majority  of  fuch  intermixture  binds  both  eftates. 
And,  from  this  want  of  a  feparate  aliembly  and  feparate  negative 
of  the  prelates,  fome  writers  have  argued  u  very  cogently,  that 
the  lords  fpiritual  and  temporal  are  now  in  reality  only  one  eftatew: 
which  is  unqueftionably  true  in  every  effectual  fenfe,  though  the 
antient  diftinclion  between  them  ftill  nominally  continues.  For 
if  a  bill  mould  pals  their  houfe,  there  is  no  doubt  of  it's  validity, 
though  every  lord  fpiritual  fhould  vote  againft  it ;  of  which 
Selden  x,  and  fir  Edward  Coke  y,  give  many  inflances  :  as,  on  the 
other  hand,  I  prefume  it  would  be  equally  good,  if  the  lords 
temporal  prefent  were  inferior  to  the  bifhops  in  number,  and 
everyone  of  thofe  temporal  lords  gave  his  vote  to  reject  the  bill; 
though  this  fir  Edward  Coke  feems  to  doubt  of z. 

•  Gilb.  Hift.  Exch.  55.  Spelm.W.  1.291.         y  21^.585,6,7.  See  Keilw.  184  ;  where 
1   Glanv.  7.  I.    Co.  Litt.  97.    SelJ.   tit.     it  is  holden   by   the  judges,  7  Hen. VIII, 

hon.  2.5.19.  that  the  king  may  hold  a  parliament  with- 

u  Whitelocke  on  Parliam.  0.72.  War-  out  any  fpiritual  lords.  This  was  alfo  ex- 

burt.  Alliance,  b.  a.  c.  j.  amplified  in  faft  in  the  two  firft  parliaments 

w  Dyer.  60.  of  Charles  II  ;  wherein  no  bifhops  were 

*  Baronage,  p.i.  c.6.  The  aft  of  umfor-  fummoned,  till  after  the  repeal  of  the  flat, 
mity,  i  Eliz.  c.  2.  was  pafFed  with  the  dif-  16  Car.  I.  c.  27.  by  flat.  13  Car.  II.  ft.  i. 
fent  of  all  the  bifhops;  (Gibf.  codex. 268.)  c.  2. 

and  therefore  the  ftile  of  lords  fpiritual  is          z  4  Inft.  25. 
omitted  throughout  the  whole. 

THE 


Ch.  2.  of    PERSONS.  157 

TH  E  lords  temporal  confift  of  all  the  peers  of  the  realm  (the 
bifhops  not  being  in  ftridlnefs  held  to  be  fuch,  but  merely  lords 
of  parliament a  )  by  whatever  title  of  nobility  diftinguifhed  ; 
dukes,  marquhTes,  earls,  vifcounts,  or  barons  ;  of  which  digni- 
ties we  (hall  fpeak  more  hereafter.  Some  of  thefe  fit  by  defcent, 
as  do  all  antient  peers  ;  fome  by  creation,  as  do  all  new-made 
ones ;  others,  fince  the  union  with  Scoltand,  by  election,  which 
is  the  cafe  of  the  fixteen  peers,  who  reprefent  the  body  of  the 
Scots  nobility.  Their  number  is  indefinite,  and  may  be  encreafed 
at  will  by  the  power  of  the  crown  :  and  once,  in  the  reign  of 
queen  Anne,  there  was  an  inftance  of  creating  no  lefs  than  twelve 
together ;  in  contemplation  of  which,  in  the  reign  of  king  George 
the  firft,  a  bill  parted  the  houfe  of  lords,  and  was  countenanced 
by  the  then  miniftry,  for  limiting  the  number  of  the  peerage. 
This  was  thought  by  fome  to  promife  a  great  acquifition  to  the 
conftitution,  by  retraining  the  prerogative  from  gaining  the  af- 
cendant  in  that  auguft  affembly,  by  pouring  in  at  pleafure  an  un- 
limited number  of  new  created  lords.  But  the  bill  was  ill-reliflied 
and  mifcarried  in  the  houfe  of  commons,  whofe  leading  mem- 
bers were  then  defirous  to  keep  the  avenues  to  the  other  houfe 
as  open  and  eafy  as  poffible. 

TH  E  diftindtion  of  rank  and  honours  is  necelTary  in  every  well 
governed  ftate  :  in  order  to  reward  fuch  as  are  eminent  for  their 
iervices  to  the  public,  in  a  manner  the  moft  defirable  to  indivi- 
duals, and  yet  without  burthen  to  the  community  ;  exciting 
thereby  an  ambitious  yet  laudable  order,  and  generous  emulation 
in  others.  And  emulation,  or  virtuous  ambition,  is  a  fpring  of 
adtion  which,  however  dangerous  or  invidious  in  a  mere  republic 
or  under  a  defpotic  fway,  will  certainly  be  attended  with  good 
effects  under  a  free  monarchy -,  where,  without  deftroying  it's 
exiflence,  it's  excefles  may  be  continually  restrained  by  that  fu- 
perior  power,  from  which  all  honour  is  derived.  Such  a  fpirit, 
when  nationally  diffufed,  gives  life  and  vigour  to  the  community  ; 
it  fets  all  the  wheels  of  government  in  motion,  which  under  a 

•  Staunford.  P.  0.153.  Wife 


158  The    RIGHTS  BOOK!. 

wife  regulator,  may  be  directed  to  any  beneficial  purpofe ;  and 
thereby  every  individual  may  be  made  fubfervient  to  the  public 
good,  while  he  principally  means  to  promote  his  own  particular 
views.  A  body  of  nobility  is  allb  more  peculiarly  neceflary  in 
our  mixed  and  compounded  conftitution,  in  order  to  fupport  the 
rights  of  both  the  crown  and  the  people,  by  forming  a  barrier  to 
withftand  the  encroachments  of  both.  It  creates  and  prelerves 
that  gradual  fcale  of  dignity,  which  proceeds  from  the  peafant  to 
the  prince  ;  riling  like  a  pyramid  from  a  broad  foundation,  and 
diminifhing  to  a  point  as  it  rifes.  It  is  this  afcending  and  con- 
tracting proportion  that  adds  ftability  to  any  government;  for 
when  the  departure  is  fudden  from  one  extreme  to  another,  we 
may  pronounce  that  ftate  to  be  precarious.  The  nobility  there- 
fore are  the  pillars,  which  are  reared  from  among  the  people,  more 
immediately  to  fupport  the  throne ;  and  if  that  falls,  they  muft 
alfo  be  buried  under  it's  ruins.  Accordingly,  when  in  the  laft 
century  the  commons  had  determined  to  extirpate  monarchy,  they 
alfo  voted  the  houfe  of  lords  to  be  ufelefs  and  dangerous.  And 
fmce  titles  of  nobility  are  thus  expedient  in  the  ftate,  it  is  alfo 
expedient  that  their  owners  fliould  form  an  independent  and  fepa- 
rate  branch  of  the  legiflature.  If  they  were  confounded  with  the 
mafs  of  the  people,  and  like  them  had  only  a  vote  in  electing 
reprefentatives,  their  privileges  would  foon  be  borne  down  and 
overwhelmed  by  the  popular  torrent,  which  would  effectually 
level  all  diftindtions.  It  is  therefore  highly  neceflary  that  the 
body  of  nobles  mould  have  a  diftinct  aflembly,  diftinct  delibera- 
tions, and  diflinct  powers  from  the  commons. 

TH  E  commons  confift  of  all  fuch  men  of  any  property  in  the 
kingdom,  as  have  not  feats  in  the  houfe  of  lords  ;  every  one  of 
which  has  a  voice  in  parliament,  either  perfonally,  or  by  his  re- 
prefentatives. In  a  free  ftate,  every  man,  who  is  fuppofed  a  free 
agent,  ought  to  be,  in  fome  meafure,  his  own  governor  ;  and 
therefore  a  branch  at  leaft  of  the  legiflative  power  fliould  refide 
in  the  whole  body  of  the  people.  And  this  power,  when  the 
territories  of  the  ftate  are  fmall  and  it's  citizens  eafily  known, 

fliould 


Ch.  2.  of    PERSONS.  159 

mould  be  exercifed  by  the  people  in  their  aggregate  or  collective 
capacity,  as  was  wifely  ordained  in  the  petty  republics  of  Greece, 
and  the  firft  rudiments  of  the  Roman  ftate.    But  this  will  be 
highly  inconvenient,  when  the  public  territory  is  extended  to  any 
confiderable  degree,    and  the  number  of  citizens  is  encreafed. 
Thus  when,  after  the  focial  war,  all  the  burghers  of  Italy  were 
admitted  free  citizens  of  Rome,  and  each  had  a  vote  in  the  pub- 
lic afTemblies,  it  became  impoffible  to  diftinguilh  the  fpurious 
from  the  real  voter,  and  from  that  time  all  elections  and  popular 
deliberations  grew  tumultuous  and  diforderly ;  which  paved  the 
way  for  Marius  and  Sylla,  Pompey  and  Caefar,  to  trample  oil 
the  liberties  of  their  country,  and  at  laft  to  diffolve  the  common- 
wealth.    In  fo  large  a  ftate  as  ours  it  is  therefore  very  wifely 
contrived,  that  the  people  mould  do  that  by  their  reprefentatives,. 
which  it  is  impracticable  to  perform  in  perfon  :   reprefentatives, 
chofen  by  a  number  of  minute  and  feparate  diftriffts,  wherein  all 
the  voters  are,  or  eafily  may  be,  diftinguifhed.  The  counties  are 
therefore  reprefented  by  knights,   elected  by  the  proprietors  of 
lands  ;    the  cities  and  boroughs  are  reprefented  by  citizens  and 
burgefles,   chofen  by  the  mercantile  part  or  fuppofed  trading  in- 
tereft  of  the  nation ;   much  in  the  fame  manner  as  the  burghers 
in  the  diet  of  Sweden  are  chofen  by  the  corporate  towns,  Stock- 
holm fending  four,  as  London  does  with  us,  other  cities  two, 
and  fome  only  one  b.     The  number  of  Englifli  reprefentatives  is 
513,  and  of  Scofs  45;  in  all  558.     And  every  member,  though 
chofen  by  one  particular  diftricl,  when  eledted  and  returned  ferves 
for  the  whole  realm.     For  the  end  of  his  coming  thither  is  not 
particular,  but  general ;  not  barely  to  advantage  his  conftituents, 
but  the  common  wealth  ;   to  advife  his  majefty  (as  appears  from 
the  writ  of  fummons0)   "  de  communi  confilio  Juper  negotiis  qiubuf- 
11  dam  arduis  et  urgentibus,  regem,  Jlatwn  et  dejenjionem  regni  An- 
tf  gliae  et  ccckjiae  Anglicanae  concernentibus."    And  therefore  he  is 
not  bound,  like  a  deputy  in  the  united  provinces,  to  confult  with* 
or  take  the  advice,  of  his  constituents  upon  any  particular  point,, 
unlefs  he  himfelf  thinks  it  proper  or  prudent  fo  to  do. 

k  Mod.  Un.  Hift.  xxxiii.  18.  c  4lnft.  14. 

THESE 


160  The    RIGHTS  BOOK  I. 

TH  E  s  E  are  the  conftituent  parts  of  a  parliament,  the  king, 
the  lords  fpiritual  and  temporal,  and  the  commons.  Parts,  of 
which  each  is  fo  neceffary,  that  the  confent  of  all  three  is  requi- 
red to  make  any  new  law  that  {hall  bind  the  fubjecl.  Whatever 
is  enacted  for  law  by  one,  or  by  two  only,  of  the  three  is  no  fta- 
tute  ;  and  to  it  no  regard  is  due,  unlefs  in  matters  relating  to  their 
own  privileges.  For  though,  in  the  times  of  madnefs  and  anarchy, 
the  commons  once  pafled  a  voted,  "that  whatever  is  enacted  or 
"  declared  for  law  by  the  commons  in  parliament  afTembled  hath 
"  the  force  of  law ;  and  all  the  people  of  this  nation  are  conclu- 
"  ded  thereby,  although  the  confent  and  concurrence  of  the  king 
"or  houfe  of  peers  be  not  had  thereto;"  yet,  when  the  conftitu- 
tion  was  reflored  in  all  it's  forms,  it  was  particularly  enacted  by 
ftatute  ^Car.  II.  c.i.  that  if  any  perfon  mall  malicioufly  or  ad- 
vifedly  affirm,  that  both  or  either  of  the  houfes  of  parliament 
have  any  legiflative  authority  without  the  king,  fuch  perfon  {hall 
incur  all  the  penalties  of  a  praemunire. 

III.  WE  are  next  to  examine  the  laws  and  cuftoms  relating  to 
parliament,  thus  united  together  and  confidered  as  one  aggregate 
body. 

THE  power  and  jurifdiction  of  parliament,  fays  fir  Edward 
Coke  %  is  fo  tranfcendent  and  abfolute,  that  it  cannot  be  confi- 
ned, either  for  caufes  or  perfons,  within  any  bounds.  And  of  this 
high  court  he  adds,  it  may  be  truly  faid  "ji  antiquitatem  fpefles, 
"  eft  vet  lift  iffima  ;  Ji  dignitatem,  eft  honoratijjima ;  ft  juridittionem, 
"  ejl  capaclffimn."  It  hath  fovereign  and  uncontrolable  authority 
in  making,  confirming,  enlarging,  retraining,  abrogating,  re- 
pealing, reviving,  and  expounding  of  laws,  concerning  matters 
of  all  poflible  denominations,  ecclefiaftical,  or  temporal,  civil, 
military,  maritime,  or  criminal :  this  being  the  place  where  that 
abfolute  defpotic  power,  which  muft  in  all  governments  refide 
fomewhere,  is  entrufted  by  the  constitution  of  thefe  kingdoms. 

d  4  Jan.  1648.  e  4lnft.  36. 

All 


Ch.  2.  o/*   PERSONS.  161 

All  mifchiefs  and  grievances,  operations  and  remedies,  that  tranf- 
cend  the  ordinary  courfe  of  the  laws,  are  within  the  reach  of 
this  extraordinary  tribunal.    It  can  regulate  or  new  model  the 
fucceflion  to  the  crown ;  as  was  done  in  the  reign  of  Henry  VIII 
and  William  III.    It  can  alter  the  eftabliihed  religion  of  the  land; 
as  was  done   in  a  variety  of   inftances,    in  the  reigns  of   king 
Henry  VIII  and  his  three  children.   It  can  change  and  create  afrem 
even  the  conftitution  of  the  kingdom  and  of  parliaments  them- 
felves ;   as  was  done  by  the  adl  of  union,  and  the  feveral  ftatutes 
for  triennial  and  feptennial  elections.    It  can,  in  fhort,  do  every 
thing  that  is  not  naturally  impoflible ;   and  therefore  fome  have 
not  fcrupled  to  call  it's  power,  by  a  figure  rather  too  bold,  the 
omnipotence  of  parliament.   True  it  is,  that  what  the  parliament 
doth,  no  authority  upon  earth  can  undo.     So  that  it  is  a  mat- 
ter moft  effential  to  the  liberties  of  this  kingdom,  that  fuch  mem- 
bers be  delegated  to  this  important  truft,  as  are  moft  eminent  for 
their  probity,  their  fortitude,  and  their  knowlege ;  for  it  was  a 
known  apothegm  of  the   great  lord  treafurer  Burleigh,    "  that 
"England  could  never  be  ruined  but  by  a  parliament :"  and,  as 
fir  Matthew  Hale  obferves  f,  this  being  the  higheft  and  greateft 
court,  over  which  none  other  can  have  jurifdiclion  in  the  king- 
dom, if  by  any  means  a  mifgovernment  fliould  any  way  fall  upon 
it,  the  fubjedts  of  this  kingdom  are  left  without  all  manner  of 
remedy.  To  the  fame  purpofe  the  prefident  Montefquieu,  though 
I  truft  too  haftily,  prefages€;  that  as  Rome,   Sparta,  and  Car- 
thage have  loft  their  liberty  and  perifhed,  fo  the  conftitution  of 
England  will  in  time  lofe  it's  liberty,  will  perim  :   it  will  perifh, 
whenever  the  legiflative  power  fliall  become  more  corrupt  than 
the  executive. 

IT  muft  be  owned  that. Mr  Locke h,  and  other  theoretical  wri- 
ters, have  held,  that  "  there  remains  ftill  inherent  in  the  people 
"  a  fupreme  power  to  remove  or  alter  the  legiflative,  when  they 
"  find  the  legiflative  aft  contrary  to  the  truft  repofed  in  them : 

f  of  parliaments.  49.  h  on  Gov.  p.  2.   §.  149.  227. 

e  Sp.  L.  11.  6. 

W  «  for 


1 62  77je    RIGHTS  .       BOOK!. 

"for  when  fuch  truft  is  abufed,  it  is  thereby  forfeited,  and  de- 
"  volves  to  thofe  who  gave  it."  But  however  juft  this  conclufion 
may  be  in  theory,  we  cannot  adopt  it,  nor  argue  from  it,  under 
any  difpenfation  of  government  at  prefent  actually  exifting.  For 
this  devolution  of  power,  to  the  people  at  large,  includes  in  it  a 
diflblution  of  the  whole  form  of  government  eftablifhed  by  that 
people,  reduces  all  the  members  to  their  original  ftate  of  equa- 
lity, and  by  annihilating  the  fovereign  power  repeals  all  pofitive 
laws  whatfoever  before  enacted.  No  human  laws  will  therefore 
fuppofe  a  cafe,  which  at  once  muft  deflroy  all  law,  and  compel 
men  to  build  afrefh  upon  a  new  foundation ;  nor  will  they  make 
provifion  for  fo  defperate  an  event,  as  muft  render  all  legal  pro- 
vifions  ineffectual.  So  long  therefore  as  the  Englifh  constitution 
lafls,  we  may  venture  to  affirm,  that  the  power  of  parliament  is 
abfolute  and  without  control. 

I  N  order  to  prevent  the  mifchiefs  that  might  arife,  by  placing 
this  extenfive  authority  in  hands  that  are  either  incapable,  or  elfe 
improper,  to  manage  it,  it  is  provided  that  no  one  mall  fit  or 
vote  in  either  houfe  of  parliament,  unlefs  he  be  twenty  one  years 
of  age.  This  is  expreflly  declared  by  ftatute  7  &  8  W.  III.  c.  25. 
with  regard  to  the  houfe  of  commons ;  though  a  minor  was  in- 
capacitated before  from  fitting  in  either  houfe,  by  the  law  and 
cuftom  of  parliament '.  To  prevent  crude  innovations  in  religion 
and  government,  it  is  enacted  by  ftatute  30  Car.  II.  ft.  2.  and 
I  Geo.  I.  c.  13.  that  no  member  fhall  vote  or  fit  in  either  houfe, 
till  he  hath  in  the  prefence  of  the  houfe  taken  the  oaths  of  alle- 
giance, fupremacy,  and  abjuration,  and  fubfcribed  and  repeated 
the  declaration  againft  tranfubftantiation,  and  invocation  of  faints, 
and  the  facrifice  of  the  mafs.  To  prevent  dangers  that  may  arife 
to  the  kingdom  from  foreign  attachments,  connexions,  or  depen- 
dencies, it  is  enacted  by  the  12  &  13  W.  III.  c.  2.  that  no  alien, 
born  out  of  the  dominions  of  the  crown  of  Great  Britain,  even 
though  he  be  naturalized,  fhall  be  capable  of  being  a  member  of 
either  houfe  of  parliament. 

;4Inft.47. 

FA  R  T  H  E  R  : 


Ch.  2.  of  PERSONS*  163 

FART  HER:  as  every  court  of  juflice  hath  laws  and  cufloms 
for  it's  direction,  fome  the  civil  and  canon,  fome  the  common 
law,  others  their  own  peculiar  laws  and  cuftoms,    fo  the  high 
court  of  parliament  hath  alfo  it's  own  peculiar  law,  called  the 
lex  et  conjuetudo  parliament!;  a  law  which  fir  Edward  Cokek  ob- 
ierves,  is  "  ab  omnibus  quaerenda,  a  multis  ignorata,  a  paucis  cog- 
"  nita."    It  will  not  therefore  be  expected  that  we  fliould  enter 
into  the  examination  of  this  law,  with  any  degree  of  minute- 
nefs ;    fince,  as  the  fame  learned  author  aflures  us ',  it  is  much 
better  to  be  learned  out  of  the  rolls  of  parliament,  and  other  re- 
cords, and  by  precedents,  and  continual  experience,  than  can  be 
expreffed  by  any  one  man.    It  will  be  fufficient  to  obferve,  that 
the  whole  of  the  law  and  cuftom  of  parliament  has  it's  original 
from  this  one  maxim ;  "  that  whatever  matter  arifes  concerning 
«'  either  houfe  of  parliament,  ought  to  be  examined,  difcufled, 
"  and  adjudged  in  that  houfe  to  which  it  relates,  and  not  elfe- 
"  where."     Hence,   for  infbnce,    the   lords  will   not  fuffer  the 
commons  to  interfere  in  fettling  the  election  of  a  peer  of  Scot- 
land;   the  commons  will  not  allow  the  lords  to  judge  of  the 
election  of  a  burgefs ;  nor  will  either  houfe  permit  the  courts  of 
law  to  examine  the  merits  of  either  cafe.    But  the  maxims  upon 
which  they  proceed,  together  with  their  method  of  proceeding, 
reft  entirely  in  the  breaft  of  the  parliament  itfelf ;   and  are  not 
defined  and  afcertained  by  any  particular  ftated  laws. 

THE  privileges  of  parliament  are  likewife  very  large  and  inde- 
finite ;  which  has  occafioned  an  obfervation,  that  the  principal 
privilege  of  parliament  confifted  in  this,  that  it's  privileges  were 
not  certainly  known  to  any  but  the  parliament  itfelf.  And  there- 
fore when  in  31  Hen.  VI  the  houfe  of  lords  propounded  a  quef- 
tion  to  the  judges  touching  the  privilege  of  parliament,  the  chief 
juftice,  in  the  name  of  his  brethren,  declared,  "  that  they  ought 
"  not  to  make  anfwer  to  that  queftion ;  for  it  hath  not  been  ufed 
"aforetime  that  the  juftices  fliould  in  any  wife  determine  the 

k  i  Inft.  ii.  i  4^11.50. 

W  2  "privileges 


164  Tlie    RIGHTS  BOOK  I, 

"  privileges  of  the  high  court  of  parliament ;  for  it  is  fo  high 
"  and  mighty  in  his  nature,  that  it  may  make  law  j  and  that 
"  which  is  law,  it  may  make  no  law;  and  the  determination  and' 
"  knowlege  of  that  privilege  belongs  to  the  lords  of  parliament, 
"  and  not  to  the  juftices  m."  Privilege  of  parliament  was  princi- 
pally eftablifhed,  in  order  to  protect  it's  members  not  only  from 
being  molefted  by  their  fellow-fubjedls,  but  alfo  more  efpecially 
from  being  opprefled  by  the  power  of  the  crown.  If  therefore 
all  the  privileges  of  parliament  were  once  to  be  fet  down  and  af- 
certained,  and  no  privilege  to  be  allowed  but  what  was  fo  defined 
and  determined,  it  were  eafy  for  the  executive  power  to  devife 
fome  new  cafe,  not  within  the  line  of  privilege,  and  under  pre- 
tence thereof  to  harafs  any  refractory  member  and  violate  the 
freedom  of  parliament.  The  dignity  and  independence  of  the 
two  houfes  are  therefore  in  great  meafure  preferved  by  keeping 
their  privileges  indefinite.  Some  however  of  the  more  notorious 
privileges  of  the  members  of  either  houfe  are,  privilege  of  fpeech, 
of  perfon,  of  their  domeftics,  and  of  their  lands  and  goods. 
As  to  the  firft,  privilege  of  fpeech,  it  is  declared  by  the  ftatute 
iW.  £c  M.  ft.  2.  c.  2.  as  one  of  the  liberties  of  the  people, 
"  that  the  freedom  of  fpeech,  and  debates,  and  proceedings  in 
"  parliament,  ought  not  to  be  impeached  or  queftioned  in  any 
"  court  or  place  out  of  parliament."  And  this  freedom  of  fpeech 
is  particularly  demanded  of  the  king  in  perfon,  by  the  fpeaker  of 
the  houfe  of  commons,  at  the  opening  of  every  new  parliament. 
So  likewife  are  the  other  privileges,  of  perfon,  fervants,  lands 
and  goods  j  which  are  immunities  as  antient  as  Edward  the  con- 
feflbr,  in  whofe  laws"  we  find  this  precept,  "  ad  jynodos  venien- 
"  tibus,  Jive  fummoniti  Jint,  Jive  per  Je  quid  agendum  habuerint,  Jit 
"fumma pax:"  and  fo  too,  in  the  old  Gothic  conftitutions,  "  ex- 
"  tenditur  haec  pax  et  fecuritas  ad  quatuordecim  dies,  ccnvocato 
"  regnl  fenatu  °."  This  includes  not  only  privilege  from  illegal 
violence,  but  alfo  from  legal  arrefts,  and  feifures  by  procefs  from 
the  courts  of  law.  To  aflault  by  violence  a  member  of  either 

™  Seld.  baronage,  part.  1.  c.  4.  °  Stiernh,  dc  jure  Gt>tb.  I.  3.  c.  3. 

tt  (tip-  3- 

houfej 


Ch.  2.  of    P  E  R  S  O  N  S.  165 

houfe,  or  his  menial  fervants,  is  a  high  contempt  of  parliament, 
and  there  punifhed  with  the  utmoft  feverity.  It  has  likewife  pe- 
culiar penalties  annexed  to  it  in  the  courts  of  law,  by  the  ftatutes 
5  Hen.  IV.  c.  6.  and  nHen.VI.  c.  n.  Neither  can  any  mem- 
ber of  either  houfe  be  arrefted  and  taken  into  cuftody,  nor  ferved1 
with  any  procefs  of  the  courts  of  law ;  nor  can  his  menial  fer- 
vants be  arrefted ;  nor  can  any  entry  be  made  on  his  lands ;  nor 
can  his  goods  be  diftrained  or  feifed ;  without  a  breach  of  the 
privilege  of  parliament. 

THESE  privileges  however,  which  derogate  from  the  common 
law,  being  only  indulged  to  prevent  the  member's  being  diverted 
from  the  public  bufmefs,  endure  no  longer  than  the  feffion  of 
parliament,  fave  only  as  to  the  freedom  of  his  perfon  :  which  in 
a  peer  is  for  ever  facred  and  inviolable  ;  and  in  a  commoner  for 
forty  days  after  every  prorogation,  and  forty  days  before  the  next 
appointed  meeting  p;  which  is  now  in  effect  as  long  as  the  par- 
liament fubfifts,  it  feldom  being  prorogued  for  more  than  four- 
fcore  days  at  a  time.  As  to  all  other  privileges  which  obstruct 
the  ordinary  courfe  of  juflice,  they  ceafe  by  the  flatutes  12  W.  III. 
c.  3.  and  nGeo.  II.  c.  24.  immediately  after  the  diflblution  or 
prorogation  of  the  parliament,  or  adjournment  of  the  houfes  for 
above  a  fortnight ;  and  during  thefe  recedes  a  peer,  or  member 
of  the  houfe  of  commons,  may  be  fued  like  an  ordinary  fubjecl', 
and  in  confequence  of  fuch  fuits  may  be  difpoffeffed  of  his  lands 
and  goods.  In  thefe  cafes  the  king  has  alfo  his  prerogative  :  he 
may  fue  for  his  debts,  though  not  arreft  the  perfon  of  a  member, 
during  the  fitting  of  parliament ;  and  by  ftatute  2  &  3  Ann.  c.i8. 
a  member  may  be  fued  during  the  fitting  of  parliament  for  any 
mifdemefnor  or  breach  of  truft  in  a  public  office.  Likewife,  for 
the  benefit  of  commerce,  it  is  provided  by  ftatute  4  Geo.  IIL 
c.  33,  that  any  trader,  having  privilege  of  parliament,  may  be 
ferved  with  legal  procefs  for  any  juft  debt,  (to  the  amount  of 
ioo/.)  and  unlefs  he  makes  fatisfaction  within  two  months,,  it 
{hall  be  deemed  an  adl  of  bankruptcy;  and  that  commiffions  of 

P  2  Lev.  72. 

bankrupt 


1 66  T/JS    RIGHTS  BOOK!. 

bankrupt  may  be  iffued  againfl  fuch  privileged  traders,  in  like 
manner  as  againfl  any  other. 

THE  only  way  by  which  courts  of  juflice  could  antiently  take 
cognizance  of  privilege  of  parliament  was  by  writ  of  privilege, 
in  the  nature  of  zfuperfedeas,  to  deliver  the  party  out  of  cuflody 
when  arreiled  in  a  civil  fuitq.  For  when  a  letter  was  written  by 
the  ipeaker  to  the  judges,  to  ftay  proceedings  againfl  a  privileged 
perfon,  they  rejected  it  as  contrary  to  their  oath  of  office r.  But 
iince  the  ftatute  12  W.  III.  c.  3.  which  enadts,  that  no  privileged 
perfon  (hall  be  fubjecl:  to  arrefl  or  imprifonment,  it  hath  been 
held  that  fuch  arrefl  is  irregular  ab  initio,  and  that  the  party  may 
be  difcharged  upon  motion  s.  It  is  to  be  obferved,  that  there  is 
no  precedent  of  any  fuch  writ  of  privilege,  but  only  in  civil 
fuits  ;  and  that  the  ilatute  of  i  Jac.  I.  c.  13.  and  that  of  king 
William  (which  remedy  fome  inconveniences  arifing  from  privi- 
lege of  parliament)  fpeak  only  of  civil  actions.  And  therefore 
the  claim  of  privilege  hath  been  ufually  guarded  with  an  excep- 
tion as  to  the  cafe  of  indictable  crimes f ;  or,  as  it  hath  been  fre- 
quently exprefTed,  of  treafon,  felony,  and  breach  (or  furety)  of 
the  peace  u.  Whereby  it  feems  to  have  been  under-flood  that  no 
privilege  was  allowable  to  the  members,  their  families,  or  fer- 
vants  in  any  crime  whatfoever ;  for  all  crimes  are  treated  by  the 
law  as  being  contra  pacem  domini  regis.  And  inflances  have  not 
been  wanting,  wherein  privileged  perfons  have  been  convidted  of 
mifdemefhors,  and  committed,  or  profecuted  to  outlawry,  even 
in  the  -middle  of  a  fefiion  w ;  which  proceeding  has  afterwards 
received  the  fandtion  and  approbation  of  parliament x.  To  which 
may  be  added,  that,  a  few  years  ago,  the  cafe  of  writing  and 
publishing  f-ditious  libels  was  refolved  by  both  houfes  y  not  to  be 
intitled  to  privilege ;  and  that  the  reafons,  upon  which  that  cafe 

•3  Dyer.  59.    4?ryn.  Brev.  Parl.  757.  w  Mich.  i6E<f<ut.  II'.  in  Scaccb.  — Lord 

T  Latch.  48.     Noy.  83.  Raym.  1461. 

s  Stra.  q?i).  *  Cc'ir..  Journ.   16  May.  1716. 

*  Com.  lourn.  17  Aug   1641.  y  Com.  journ.     24  Nov.     Lords  Journ. 

^  4111(1.25.  Com.  journ.  20  May.  1675.  29Nov.  1763. 

proceeded  % 


Ch.  2.  of    PERSONS.  267 

proceeded  %  extended  equally  to  every  indictable  offence.  So  that 
the  chief,  if  not  the  only,  privilege  of  parliament,  in  fuch  cafes, 
feems  to  be  the  right  of  receiving  immediate  information  of  the 
imprifonment  or  detention  of  any  member,  with  the  reafon  for 
which  he  is  detained  :  a  practice  that  is  daily  ufed  upon  the 
flighted  military  accufations,  preparatory  to  a  trial  by  a  court 
martial 1 ;  and  which  is  recognized  by  the  feveral  temporary  fta- 
tutes  for  fufpending  the  habeas  corpus  act b,  whereby  it  is  provi- 
ded, that  no  member  of  either  houfe  mall  be  detained,  till  the 
matter  of  which  he  ftands  fufpedted,  be  firft  communicated  to 
the  houfe  of  which  he  is  a  member,  and  the  confent  of  the  faid 
houfe  obtained  for  his  commitment  or  detaining.  But  yet  the 
ufage  has  uniformly  been,  ever  fince  the  revolution,  that  the 
communication  has  been  fubfequent  to  the  arreft. 

THESE  are  the  general  heads  of  the  laws  and  cufloms  rela- 
ting to  parliament,  conlidered  as  one  aggregate  body.  We  will 
next  proceed  to 

IV.  THE  laws  and  cufloms  relating  to  the  houfe  of  lords  in 
particular.  Thefe,  if  we  exclude  their  judicial  capacity,  which 
will  be  more  properly  treated  of  in  the  third  and  fourth  books  of 
thefe  commentaries,  will  take  up  but  little  of  our  time. 

ONE  very  antient  privilege  is  that  declared  by  the  charter  of 
the  foreftc,  confirmed  in  parliament  9  Hen.  Ill;  viz.  that  every 
lord  fpiritual  or  temporal  fummoned  to  parliament,  and  pafling 
through  the  king's  forefts,  may,  both  in  going  and  returning,  kill 
one  or  two  of  the  king's  deer  without  warrant ;  in  view  of  the 
forefler,  if  he  be  prefent ;  or  on  blowing  a  horn  if  he  be  abfent, 
that  he  may  not  feem  to  take  the  king's  venifon  by  Health. 

IN  the  next  place  they  have  a  right  to  be  attended,  and  con- 
flantly  are,  by  the  judges  of  the  court  of  king's  bench  and.com- 

z  Lords  Proteft.  Hid.  b  particularly  i7Geo.  II.  c.  6. 

1  Com.  Journ.  20  Apr.  1762.  c  c.  11. 

monpleas, 


i"68  The    RIGHTS  BOOK!. 

monpleas,  and  fuch  of  the  barons  of  the  exchequer  as  are  of  the 
degree  of  the  coif,  or  have  been  made  ferjeants  at  law ;  as  like- 
wife  by  the  matters  of  the  court  of  chancery ;  for  their  advice 
in  point  of  law,  and  for  the  greater  dignity  of  their  proceedings. 
The  fecretaries  of  ftate,  the  attorney  and  folicitor  general,  and 
the  reft  of  the  king's  learned  counfel  being  ferjeants,  were  alfo 
ufed  to  attend  the  houfe  of  peers,  and  have  to  this  day  their  re- 
gular writs  of  fummons  ifliied  out  at  the  beginning  of  every  par- 
liamentd  :  but,  as  many  of  them  have  of  late  years  been  members 
of  the  houfe  of  commons,  their  attendance  is  fallen  into  difufe. 

ANOTHER  privilege  is,  that  every  peer,  by  licence  obtained 
from  the  king,  may  make  another  lord  of  parliament  his  proxy, 
to  vote  for  him  in  his  abfence0.  A  privilege  which  a  member  of 
the  other  houfe  can  by  no  means  have,  as  he  is  himfelf  but  a 
proxy  for  a  multitude  of  other  people f. 

EACH  peer  has  alfo  a  right,  by  leave  of  the  houfe,  when  a 
vote  pailes  contrary  to  his  fentiments,  to  enter  his  diiTent  on  the 
journals  of  the  houfe,  with  the  reafons  for  fuch  diflent ;  which 
is  ufually  ftiled  his  proteft. 

ALL  bills  likewife,  that  may  in  their  confequences  any  way 
affect  the  rights  of  the  peerage,  are  by  the  cuftom  of  parliament 
to  have  their  firft  rife  and  beginning  in  the  houfe  of  peers,  and 
to  fufFer  no  changes  or  amendments  in  the  houfe  of  commons. 

THERE  is  alfo  one  flatute  peculiarly  relative  to  the  houfe  of 
lords  j  6  Ann.  c.  23.  which  regulates  the  election  of  the  fixteen 
reprefentative  peers  of  North  Britain,  in  confequence  of  the 
twenty  fecond  and  twenty  third  articles  of  the  union  :  and  for 
that  purpofe  prefcribes  the  oaths,  &c,  to  be  taken  by  the  electors; 
directs  the  mode  of  balloting ;  prohibits  the  peers  electing  from 

d  Stat.    31  Hen.  VIII.    c.  10.      Smith's         e  Seld.  baronage,  p.  I,  c.i. 
commonw.  b.  2.  0.3.    Moor-551.   4lnft.4.         f  4  Inft.  12. 
Hale  of  parl.  140. 

being 


Ch,  2.  of    PERSONS.  169 

being  attended  in  an  unufual  manner ;  and  exprellly  provides, 
that  no  other  matter  fhall  be  treated  of  in  that  aflembly,  fave 
only  the  election,  on  pain  of  incurring  a  praemunire. 

V.  THE  peculiar  laws  and  cufloms  of  the  houfe  of  commons 
relate  principally  to  the  raifing  of  taxes,  and  the  elections  of 
members  to  ferve  in  parliament. 

FIRST,  with  regard  to  taxes:    it  is  the  antient  indifputable 
privilege  and  right  of  the  houfe  of  commons,  that  all  grants  of 
fubfidies  or  parliamentary  aids  do  begin  in  their  houfe,  and  are 
firft  beftowed  by  them  ^ ;  although  their  grants  are  not  effectual 
to  all  intents  and  purpofes,  until  they  have  the  afTent  of  the  other 
two  branches  of  the  legillature.    The  general  reafon,  given  for 
this  exclufive  privilege  of  the  houfe  of  commons,  is,  that  the 
fupplies  are  raifed  upon  the  body  of  the  people,  and  therefore  it 
is  proper  that  they  alone  mould  have  the  right  of  taxing  them- 
felves.  This  reafon  would  be  unanfwerable,  if  the  commons  taxed 
none  but  themfelves  :    but  it  is  notorious,  that  a  very  large  fhare 
of  property  is  in  the  poffeffion  of  the  houfe  of  lords ;  that  this 
property  is  equally  taxable,  and  taxed,  as  the  property  of  the 
commons;  and  therefore  the  commons  not  being  thefo/e  perfons 
taxed,  this  cannot  be  the  reafon  of  their  having  thejble  right  of 
railing  and  modelling  the  fupply.    The  true  reafon,  arifing  from 
the  fpirit  of  our  conftitution,  feems  to  be  this.    The  lords  being 
a  permanent  hereditary  body,  created  at  pleafure  by  the  king,  are 
fuppofed  more  liable  to  be  influenced  by  the  crown,  and  when 
once  influenced  to  continue  fo,  than  the  commons,  who  are  a 
temporary  elective  body,  freely  nominated  by  the  people.  It  would 
therefore  be  extremely  dangerous,  to  give  them  any  power  of 
framing  new  taxes  for  the  fubject :  it  is  fuflicient,  that  they  have 
a  power  of  rejecting,  if  they  think  the  commons  too  lavifh  or 
improvident  in  their  grants.     But  fo  reafonably  jealous  are  the 
commons  of  this  valuable  privilege,   that  herein   they  will  not 
fuffer  the  other  houfe  to  exert  any  power  but  that  of  rejecting  j 

E  4lnft.  29. 

X  they 


170  *TfM    RIGHTS  BOOK!. 

they  will  not  permit  the  leaft  alteration  or  amendment  to  be  made 
by  the  lords  to  the  mode  of  taxing  the  people  by  a  money  bill ; 
under  which  appellation  are  included  all  bills,  by  which  money 
is  directed  to  be  railed  upon  the  fubject,  for  any  purpofe  or  in 
any  fhape  whatfoeverj  either  for  the  exigencies  of  government, 
and  collected  from  the  kingdom  in  general,  as  the  land  tax;  or 
for  private  benefit,  and  collected  in  any  particular  diftrict,  as  by 
turnpikes,  parifh  rates,  and  the  like.  Yet  fir  Matthew  Haleh 
mentions  one  cafe,  founded  on  the  practice  of  parliament  in  the 
reign  of  Henry  VI ',  wherein  he  thinks  the  lords  may  alter  a 
money  bill  ;  and  that  is,  if  the  commons  grant  a  tax,  as  that  of 
tonnage  arid  poundage,  for  four  years ;  and  the  lords  alter  it  to 
a  lefs  time,  as  for  tivo  years ;  here,  he  fays,  the  bill  need  not  be 
fent  back  to  the  commons  for  their  concurrence,  but  may  receive 
the  royal  aflent  without  farther  ceremony ;  for  the  alteration  of 
the  lords  is  confident  with  the  grant  of  the  commons.  But  fuch 
an  experiment  will  hardly  be  repeated  by  the  lords,  under  the  pre- 
fent  improved  idea  of  the  privilege  of  the  houfe  of  commons  : 
and,  in  any  cafe  where  a  money  bill  is  remanded  to  the  commons, 
all  amendments  in  the  mode  of  taxation  are  fure  to  be  rejected. 

NEXT,  with  regard  to  the  elections  of  knights,  citizens,  and 
burgefles;  we  may  obferve,  that  herein  confifts  the  exercife  of  the 
democratical  part  of  our  constitution  :  for  in  a  democracy  there 
can  be  no  exercife  of  fovereignty  but  by  fuffrage,  which  is  the 
declaration  of  the  people's  will.  In  all  democracies  therefore  it 
is  of  the  utmoft  importance  to  regulate  by  whom,  and  in  what 
manner,  the  fuffrages  are  to  be  given.  And  the  Athenians  were 
fo  juflly  jealous  of  this  prerogative,  that  a  ftranger,  who  inter- 
fered in  the  affemblies  of  the  people,  was  punifhed  by  their  laws 
with  death  :  becaufe  fuch  a  man  was  efteemed  guilty  of  high 
treafon,  by  ufurping  thofe  rights  of  fovereignty,  to  which  he  had 
no  title.  In  England,  where  the  people  do  not  debate  in  a  col- 
lective body  but  by  reprefentation,  the  exercife  of  this  fovereignty 

h  on  parliaments.  65,  66.  anfwer  to  this  cafe  by  fir  Heneage  Finch, 

'  Year  book,  33  Hen.VI.  17.  But  fee  the     Com.  Journ.  22  Apr.  1671. 

confifts 


Ch.  2.  of    PERSONS.  171 

confifts  in  the  choice  of  reprefentatives.  The  laws  have  therefore 
very  ftrictly  guarded  againft  ufurpation  or  abufe  of  this  power, 
by  many  falutary  provilions  ;  which  may  be  reduced  to  thefe  three 
points,  i.  The  qualifications  of  the  electors.  2.  The  qualifica- 
tions of  the  elected.  3.  The  proceedings  at  elections. 

i.  As  to  the  qualifications  of  the  electors.  The  true  reafon 
of  requiring  any  qualification,  with  regard  to  property,  in  voters, 
is  to  exclude  fuch  perfons  as  are  in  fo  mean  a  fituation  that  they 
are  eileemed  to  have  no  will  of  their  own.  If  thefe  perfons  had 
votes,  they  would  be  tempted  to  difpofe  of  them  under  fome 
undue  influence  or  other.  This  would  give  a  great,  an  artful,  or 
a  wealthy  man,  a  larger  mare  in  elections  than  is  confident  with 
general  liberty.  If  it  were  probable  that  every  man  would  give 
his  vote  freely,  and  without  influence  of  any  kind,  then,  upon 
the  true  theory  and  genuine  principles  of  liberty,  every  member 
of  the  community,  however  poor,  mould  have  a  vote  in  electing 
thofe  delegates,  to  whofe  charge  is  committed  the  difpofal  of  his 
property,  his  liberty,  and  his  life.  But,  fince  that  can  hardly  be 
expected  in  perfons  of  indigent  fortunes,  or  fuch  as  are  under  the 
immediate  dominion  of  others,  all  popular  ftates  have  been  obli- 
ged to  eftablilh  certain  qualifications  j  whereby  fome,  who  are 
fufpected  to  have  no  will  of  their  own,  are  excluded  from  voting, 
in  order  to  fet  other  individuals,  whofe  wills  may  be  fuppofed 
independent,  more  thoroughly  upon  a  level  with  each  other. 

AND  this  constitution  of  fuffrages  is  framed  upon  a  wifer  prin- 
ciple, with  us,  than  either  of  the  methods  of  voting,  by  centuries 
or  by  tribes,  among  the  Romans.  In  the  method  by  centuries,  in- 
ftituted  by  Servius  Tullius,  it  was  principally  property,  and  not 
numbers,  that  turned  the  fcale  :  in  the  method  by  tribes,  gra- 
dually introduced  by  the  tribunes  of  the  people,  numbers  only 
were  regarded  and  property  entirely  overlooked.  Hence  the  laws 
pafled  by  the  former  method  had  ufually  too  great  a  tendency  to 
aggrandize  the  patricians  or  rich  nobles ;  and  thofe  by  the  latter 
had  too  much  of  a  levelling  principle.  Our  conftitution  fleers 

X  2  between 


172  The    RIGHTS  BOOK!. 

between  the  two  extremes.  Only  fuch  are  entirely  excluded, 
as  can  have  no  will  of  their  own  :  there  is  hardly  a  free  agent  to 
be  found,  but  what  is  entitled  to  a  vote  in  fome  place  or  other 
in  the  kingdom.  Nor  is  comparative  wealth,  or  property,  entirely 
difregarded  in  elections ;  for  though  the  richeft  man  has  only  one 
vote  at  one  place,  yet,  if  his  property  be  at  all  diffufed,  he  has 
probably  a  right  to  vote  at  more  places  than  one,  and  therefore 
has  many  reprefentatives.  This  is  the  fpirit  of  our  conftitution  : 
not  that  I  aflert  it  is  in  fact  quite  fo  perfect  as  I  have  here  endea- 
voured to  defcribe  it ;  for,  if  any  alteration  might  be  wimed  or 
fuggefted  in  the  prefent  frame  of  parliaments,  it  mould  be  in 
favour  of  a  more  complete  reprefentation  of  the  people. 

B  u  T  to  return  to  our  qualifications ;  and  firft  thofe  of  elec- 
tors for  knights  of  the  mire,  i.  By  ftatute  8  Hen. VI.  c.j.  and 
10  Hen.  VI.  c.  2.  the  knights  of  the  mires  mall  be  chofen  of 
people  dwelling  in  the  fame  counties ;  whereof  every  man  mall 
have  freehold  to  the  value  of  forty  millings  by  the  year  within 
the  county;  which  by  fubfequent  ftatutes  is  to  be  clear  of  all 
charges  and  deductions,  except  parliamentary  and  parochial  taxes. 
The  knights  of  mires  are  the  reprefentatives  of  the  landholders, 
or  landed  intereft,  of  the  kingdom  :  their  electors  muft  there- 
fore have  eftates  in  lands  or  tenements,  within  the  county  repre- 
fented :  thefe  eftates  muft  be  freehold,  that  is,  for  term  of  life 
at  leaft;  becaufe  beneficial  leafes  for  long  terms  of  years  were 
not  in  ufe  at  the  making  of  thefe  ftatutes,  and  copyholders  were 
then  little  better  than  villeins,  abfolutely  dependent  upon  their 
lord :  this  freehold  muft  be  of  forty  millings  annual  value ;  be- 
caufe that  fum  would  then,  with  proper  induftry,  furnim  all  the 
neceflaries  of  life,  and  render  the  freeholder,  if  he  pleafed,  an 
independent  man.  For  bifhop  Fleetwood,  in  his  chronicon  pre- 
clojum  written  about  fixty  years  fince,  has  fully  proved  forty  mil- 
lings in  the  reign  of  Henry  VI  to  have  been  equal  to  twelve 
pounds  per  annum  in  the  reign  of  queen  Anne;  and,  as  the  value 
of  money  is  very  confiderably  lowered  fince  the  bifhop  wrote,  I 
think  we  may  fairly  conclude,  from  this  and  other  circumftances, 

that 


Ch.  2.  of   PE  RSON  s,  173 

that  what  was  equivalent  to  twelve  pounds  in  his  days  is  equiva- 
lent to  twenty  at  prefent.  The  other  lefs  important  qualifications 
of  the  electors  for  counties  in  England  and  Wales  may  be  collected 
from  the  ftatutes  cited  in  the  margin  k;  which  direct,  2.  That  no 
perfon  under  twenty  one  years  of  age  (hall  be  capable  of  voting 
for  any  member.  This  extends  to  all  forts  of  members,  as  well 
for  boroughs  as  counties ;  as  does  allb  the  next,  viz.  3.  That  no 
perion  convicted  of  perjury,  or  fubornation  of  perjury,  mall  be 
capable  of  voting  in  any  election.  4.  That  no  perfon  fhall  vote  in 
right  of  any  freehold,  granted  to  him  fraudulently  to  qualify  him 
to  vote.  Fraudulent  grants  are  fuch  as  contain  an  agreement  to 
reconvey,  or  to  defeat  the  eftate  granted ;  which  agreements  are 
made  void,  and  the  eftate  is  abfolutely  vefted  in  the  perfon  to 
whom  it  is  fo  granted.  And,  to  guard  the  better  againft  fuch 
frauds,  it  is  farther  provided,  5.  That  every  voter  fhall  have 
been  in  the  actual  pofleffion,  or  receipt  of  the  profits,  of  his  free- 
hold to  his  own  ufe  for  twelve  calendar  months  before  ;  except 
it  came  to  him  by  defcent,  marriage,  marriage  fettlement,  will, 
or  promotion  to  a  benefice  -or  office.  6.  That  no  perfon  fhall 
vote  in  refpect  of  an  annuity  or  rentcharge,  unlefs  regiftered  with 
the  clerk  of  the  peace  twelve  calendar  months  before.  7.  That 
in  mortgaged  or  truft-eftates,  the  perfon  in  pofTeiTion,  under  the 
above-mentioned  reftrictions,  mall  have  the  vote.  8.  That  only 
one  perfon  fhall  be  admitted  to  vote  for  any  one  houfe  or.  tene- 
ment, to  prevent  the  fplitting  of  freeholds.  9.  That  no  eftate 
fhall  qualify  a  voter,,  unlefs  the  eftate  has  been  aflefTed  to  fome 
land  tax  aid,  at  leaft  twelve  months  before  the  election.  10.  That 
no  tenant  by  copy  of  court  roll  fhall  be  permitted  to  vote  as  a 
freeholder.  Thus  much  for  the  electors  in  counties. 

As  for  the  electors  of  citizens  and  burgefTes,  thefe  are  fuppo- 
fed  to  be  the  mercantile  part  or  trading  intereft  of  this  kingdom. 
But  as  trade  is  of  a  fluctuating  nature,  and  feldom  long  fixed  in 
a  place,  it  was  formerly  left  to  the  crown  to  fummon,  pro  re  nata* 

k  7  &  8W.III.  0.25.    loAnn.  0.23.    2  Geo.  II.  c.  21.    18  Geo.  II.  c.  18.   3iGeo.II. 
c.  14.    3  Geo.  III.  c.  24. 

the 


174  ?#*    RIGHTS  BOOK!. 

the  mod  flourifhing  towns  to  fend  reprefentatives  to  parliament. 
So  that  as  towns  encreafed  in  trade,  and  grew  populous,  they 
were  admitted  to  a  mare  in  the  legiflature.  But  the  misfortune 
is,  that  the  deferted  boroughs  continued  to  be  fummoned,  as  well 
as  thofe  to  whom  their  trade  and  inhabitants  were  transferred ; 
except  a  few  which  petitioned  to  be  eafed  of  the  expenfe,  then 
ufual,  of  maintaining  their  members :  four  {hillings  a  day  being 
allowed  for  a  knight  of  the  mire,  and  two  millings  for  a  citizen  or 
burgefs ;  which  was  the  rate  of  wages  eflablimed  in  the  reign 
of  Edward  III  m.  Hence  the  members  for  boroughs  now  bear 
above  a  quadruple  proportion  to  thole  for  counties,  and  the  num- 
ber of  parliament  men  is  increafed  lince  Fortefcue's  time,  in  the 
reign  of  Henry  the  fixth,  from  300  to  upwards  of  500,  exclu- 
live  of  thofe  for  Scotland.  The  univerfities  were  in  general  not 
empowered  to  fend  burgefTes  to  parliament ;  though  once,  in 
28  Edw.  I.  when  a  parliament  was  fummoned  to  confider  of  the 
king's  right  to  Scotland,  there  were  iflued  writs,  which  required 
the  univerfity  of  Oxford  to  fend  up  four  or  five,  and  that  of  Cam- 
bridge two  or  three,  of  their  moft  difcreet  and  learned  lawyers 
for  that  purpofe  n.  But  it  was  king  James  the  firft,  who  indul- 
ged them  with  the  permanent  privilege  to  fend  conftantly  two  of 
their  own  body ;  to  ferve  for  thofe  ftudents  who,  though  ufeful 
members  of  the  community,  were  neither  concerned  in  the  landed 
nor  the  trading  intereft;  and  to  protect  in  the  legiflature  the 
rights  of  the  republic  of  letters.  The  right  of  election  in  boroughs 
is  various,  depending  intirely  on  the  feveral  charters,  cuftoms, 
and  constitutions  of  the  refpective  places,  which  has  occafioned 
infinite  difputes  j  though  now  by  ftatute  2  Geo.  II.  c.  24.  the  right 
of  voting  for  the  future  lhall  be  allowed  according  to  the  laft  de- 
termination of  the  houfe  of  commons  concerning  it.  And  by 
ftatute  3  Geo.  III.  c.i5.  no  freeman  of  any  city  or  borough  (other 
than  fuch  as  claim  by  birth,  marriage,  or  fervitude)  mall  be  in- 
titled  to  vote  therein,  unlefs  he  hath  been  admitted  to  his  freedom 
twelve  calendar  months  before. 

m  4lnil.  16.  n  Prynne  parl.  writs.  I.  345. 

i 

2.  OUR 


Ch.  2.  of    PERSONS.  175 

2.  OUR  fecond  point  is  the  qualification  of  perfons  to  be 
elected  members  of  the  houfe  of  commons.  This  depends  upon 
the  law  and  cuftom  of  parliaments  °,  and  the  flatutes  referred  to 
in  the  margin p.  .  And  from  thefe  it  appears,  i .  That  they  mufl 
not  be  aliens  born,  or  minors.  2.  That  they  muft  not  be  any  of 
the  twelve  judges,  becaufe  they  fit  in  the  lords'  houfe ;  nor  of 
the  clergy,  for  they  fit  in  the  convocation  ;  nor  perfons  attainted 
of  treafon  or  felony,  for  they  are  unfit  to  fit  any  where q.  3.  That 
fheriffs  of  counties,  and  mayors  and  bailiffs  of  boroughs,  are  not 
eligible  in  their  refpeftive  jurifdidions,  as  being  returning  offi- 
cers r ;  but  that  fheriffs  of  one  county  are  eligible  to  be  knights 
of  another s.  4.  That,  in  ftridnefs,  all  members  ought  to  be 
inhabitants  of  the  places  for  which  they  are  chofen  :  but  this  is 
intirely  difregarded.  5.  That  no  perfons  concerned  in  the  ma- 
nagement of  any  duties  or  taxes  created  fince  1692,  except  the 
commiiTioners  of  the  treafury,  nor  any  of  the  officers  following, 
(viz.  commiffioners  of  prizes,  tranfports,  fick  and  wounded,  wine 
licences,  navy,  and  victualling ;  fecretaries  or  receivers  of  prizes  i 
comptrollers  of  the  army  accounts ;  agents  for  regiments ;  go- 
vernors of  plantations  and  their  deputies ;  officers  of  Minorca  or 
Gibraltar  ;  officers  of  the  excile  and  cuitoms  ;  clerks  or  deputies 
in  the  feveral  offices  of  the  treafury,  exchequer,  navy,  viclual- 
ling,  admiralty,  pay  of  the  army  or  navy,  fecretaries  of  flate, 
fait,  ftamps,  appeals,  wine  licences,  hackney  coaches,  hawkers, 
and  pedlars)  nor  any  perfons  that  hold  any  new  office  under  the 
crown  created  fince  1705,  are  capable  of  being  elecled  members, 
6.  That  no  perfon  having  a  penfion  under  the  crown  during  plea- 
lure,  or  for  any  term  of  years,  is  capable  of  being  elected.  7.  That 
if  any  member  accepts  an  office  under  the  crown,  except  an  officer 
in  the  army  or  navy  accepting  a  new  commiffion,  his  feat  is  void ;, 

0  4lni);.  47.  15  Geo.  II.  c.  22.     33660.  II.  c.  20. 

P   iHen.V.    c.i.      23  Hen.  VI.    c.  15.  •!  4^.47. 

iW.&M.  ft.  2.  c.  2.    5  &  6W.  £  M.  c.  7.  r  Hale  of  parl.ii4. 

ii  &  izW. III.  c.  2.    12  &  i3W.  III.  c.io.  s  4  Inft.  48.  Whitelocke  of  parl.  ch.  99> 

6  Ann.  c. 7.    9  Ann.  c.  5.     I  Geo.  I,  0.56.  100,101. 

but 


1 7  6  The    RIGHTS  BOOK!. 

but  fuch  member  is  capable  of  being  re-ele&ed.  8.  That  all 
knights  of  the  fhire  fhall  be  actual  knights,  or  fuch  notable 
efquires  and  gentlemen,  as  have  eftates  fufficient  to  be  knights, 
and  by  no  means  of  the  degree  of  yeomen.  This  is  reduced  to 
a  ftill  greater  certainty,  by  ordaining,  9.  That  every  knight  of  a 
fliire  fhall  have  a  clear  eftate  of  freehold  or  copyhold  to  the  va- 
lue of  fix  hundred  pounds  per  annum,  and  every  citizen  and 
burgefs  to  the  value  of  three  hundred  pounds ;  except  the  eldeft 
fons  of  peers,  and  of  perfons  qualified  to  be  knights  of  fhires,  and 
except  the  members  for  the  two  univerlities :  which  fomewhat 
ballances  the  afcendant  which  the  boroughs  have  gained  over  the 
counties,  by  obliging  the  trading  intereft  to  make  choice  of 
landed  men  :  and  of  this  qualification  the  member  muft  make 
oath,  and  give  in  the  particulars  in  writing,  at  the  time  of  his 
taking  his  feat.  But,  fubject  to  thefe  reflections  and  difqualifi- 
cations,  every  fubject  of  the  realm  is  eligible  of  common  right. 
It  was  therefore  an  unconftitutional  prohibition,  which  was  in- 
ferted  in  the  king's  writs,  for  the  parliament  holden  at  Coventry, 
6  Hen.  IV,  that  no  apprentice  or  other  man  of  the  law  mould 
be  elected  a  knight  of  the  fhire  therein ' :  in  return  for  which, 
our  law  books  and  hiftorians  u  have  branded  this  parliament  with 
the  name  of  parllamentum  indoffiiim,  or  the  lack-learning  parlia- 
ment ;  and  fir  Edward  Coke  obferves  with  fome  fpleen  w,  that 
there  was  never  a  good  law  made  thereat. 

3.  THE  third  point  regarding  elections,  is  the  method  of 
proceeding  therein.  This  is  alfo  regulated  by  the  law  of  par- 
liament, and  the  feveral  ftatutes  referred  to  in  the  margin x ;  all 
which  I  fhall  endeavour  to  blend  together,  and  extract  out  of  them 
a  fummary  account  of  the  method  of  proceeding  to  elections. 

'  Pryn.  on  4lnft.  13.  c.2O.     7  W.  III.  0.4.     7  ,<c  8  W.  III.  c.  7. 

u  Y/alungh.  A.D.  1405.  and  c.  25.      10  &  1 1  W.  III.    0.7.     12  & 

w  4  Tnft.  48.  13  W.  III.  c.  10.     6  Ann.  c.  23.     9  Ann. 

x  7  Ken. IV.  c.ij.  8  Hen.  VI.  0.7.  0.5.  icAnn.  c.ig.  0.33.  2  Geo.  II.  0.24. 

23!; Ti. VI.  c.  15.  i  W.  &  M.  ft. -i.  c.  2.  8Geo.II.  0.30.  i8Geo.ILc.i8.  ^Geo.ll. 

2W.  &  M.  ft.  i.  c.  7.  5&6W.  &  M.  c.  28. 

As 


Ch.  2.  of    PERSONS.  177 

A  s  foon  as  the  parliament  is  fummoned,  the  lord  chancellor 
(or  if  a  vacancy  happens  during  parliament,  the  fpeaker,  by  or- 
der of  the  houfe)  fends  his  warrant  to  the  clerk  of  the  crown  in 
chancery ;  who  thereupon  iffues  out  writs  to  the  meriff  of  every 
county,  for  the  election  of  all  the  members  to  ferve  for  that 
county,  and  every  city  and  borough  therein.  Within  three  days 
after  the  receipt  of  this  writ,  the  (herifF  is  to  fend  his  precept, 
under  his  feal,  to  the  proper  returning  officers  of  the  cities  and 
boroughs,  commanding  them  to  elect  their  members ;  and  the 
faid  returning  officers  are  to  proceed  to  election  within  eight  days 
from  the  receipt  of  the  precept,  giving  four  days  notice  of  the 
fame ;  and  to  return  the  perfons  chofen,  together  with  the  pre- 
cept, to  the  meriff. 

BUT  elections  of  knights  of  the  mire  muft  be  proceeded  to 
by  the  fheriffs  themfelves  in  perfon,  at  the  next  county  court  that 
fhall  happen  after  the  delivery  of  the  writ.  The  county  court  is 
a  court  held  every  month  or  oftener  by  the  fheriff,  intended  to 
try  little  caufes  not  exceeding  the  value  of  forty  millings,  in  what 
part  of  the  county  he  pleafes  to  appoint  for  that  purpofe  :  but 
for  the  election  of  knights  of  the  ihire,  it  muft  be  held  at  the 
moft  ufual  place.  If  the  county  court  falls  upon  the  day  of  de- 
livering the  writ,  or  within  fix  days  after,  the  fheriff  may  adjourn 
the  court  and  election  to  fome  other  convenient  time,  not  longer 
than  fixteen  days,  nor  fhorter  than  ten ;  but  he  cannot  alter  the 
place,  without  the  confent  of  all  the  candidates  j  and  in  all  fuch 
cafes  ten  days  public  notice  muft  be  given  of  the  time  and  place 
of  the  election. 

* 

AND,  as  it  is  effential  to  the  very  being  of  parliament  that 
elections  mould  be  abfolutely  free,  therefore  all  undue  influences 
upon  the  electors  are  illegal,  and  ftrongly  prohibited.  For 
Mr  Locke  y  ranks  it  among  thofe  breaches  of  trult  in  the  execu- 
tive magiftrate,  which  according  to  his  notions  amount  to  a  dif- 

y  on  Gov.  p.  2.  §.  322. 

Y  folution 


178  The    RIGHTS  BOOK  I. 

folution  of  the  government,  "  if  he  employs  the  force,  treafure, 
"  and  offices  of  the  fociety  to  corrupt  the  reprefentatives,  or  openly 
"  to  preingage  the  electors,  and  prefcribe  what  manner  of  perfons 
"  mall  be  chofen.  For  thus  to  regulate  candidates  and  electors, 
"and  new  model  the  ways  of  election,  what  is  it,  fays  he,  but 
"  to  cut  up  the  government  by  the  roots,  and  poifon  the  very 
"  fountain  of  public  fecurity  ? "  As  foon  therefore  as  the  time 
and  place  of  election,  either  in  counties  or  boroughs,  are  fixed, 
all  foldiers  quartered  in  the  place  are  to  remove,  at  leaft  one  day 
before  the  election,  to  the  diltance  of  two  miles  or  more ;  and 
not  return  till  one  day  after  the  poll  is  ended.  Riots  likewife  have 
been  frequently  determined  to  make  an  election  void.  By  vote 
alfo  of  the  houfe  of  commons,  to  whom  alone  belongs  the  power 
of  determining  contested  elections,  no  lord  of  parliament,  or  lord 
lieutenant  of  a  county,  hath  any  right  to  interfere  in  the  election 
of  commoners ;  and,  by  ftatute,  the  lord  warden  of  the  cinque 
ports  mall  not  recommend  any  members  there.  If  any  officer  of 
the  excife,  cuftoms,  ftamps,  or  certain  other  branches  of  the  re- 
venue, prefumes  to  intermeddle  in  elections,  by  perfuading  any 
voter  or  difluading  him,  he  forfeits  ioo/,  and  is  difabled  to  hold 
any  office. 

THUS  are  the  electors  of  one  branch  of  the  legiflature  fecu- 
red  from  any  undue  influence  from  either  of  the  other  two,  and 
from  all  external  violence  and  compuliion.  But  the  greateft  dan- 
ger is  that  in  which  themfelves  co-operate,  by  the  infamous  prac- 
tice of  bribery  and  corruption.  To  prevent  which  it  is  enacted 
that  no  candidate  mall,  after  the  date  (ufually  called  the  tefte]  of 
the  writs,  or  after  the  vacancy,  give  any  money  or  entertainment 
to  his  electors,  or  promife  to  give  any,  either  to  particular  per- 
fons, or  to  the  place  in  general,  in  order  to  his  being  elected ; 
on  pain  of  being  incapable  to  ferve  for  that  place  in  parliament. 
And  if  any  money,  gift,  office,  employment,  or  reward  be  given 
or  promifed  to  be  given  to  any  voter,  at  any  time,  in  order  to  in- 
fluence him  to  give  or  withhold  his  vote,  as  well  he  that  takes  as 
he  that  offers  fuch  bribe  forfeits  500  /,  and  is  for  ever  difabled 

from 


Ch.  2.  of    PERSONS.  170 

from  voting  and  holding  any  office  in  any  corporation ;  unlefs, 
before  conviction,  he  will  difcover  fome  other  offender  of  the 
fame  kind,  and  then  he  is  indemnified  for  his  own  offence2.  The 
firfl  inflance  that  occurs,  of  election  bribery,  was  fo  early  as 
13  Eliz.  when  one  Thomas  Longe  (being  a  limple  man  and  of 
fmall  capacity  to  ferve  in  parliament)  acknowleged  that  he  had 
given  the  returning  officer  and  others  of  the  borough  for  which 
he  was  chofen  four  pounds  to  be  returned  member,  and  was  for 
that  premium  elected.  But  for  this  offence  the  borough  was 
amerced,  the  member  was  removed,  and  the  officer  fined  and 
imprifoned  a.  But,  as  this  practice  hath  fmce  taken  much  deeper 
and  more  univerfal  root,  it  hath  occafioned  the  making  of  thefe 
wholefome  ftatutes ;  to  complete  the  efficacy  of  which,  there  is 
nothing  wanting  but  refolution  and  integrity  to  put  them  in. 
flrict  execution. 

UNDUE  influence  being  thus  (I  wifli  the  depravity  of  man- 
kind would  permit  me  to  fay,  effectually)  guarded  againfl,  the 
election  is  to  be  proceeded  to  on  the  day  appointed  j  the  fherifF 
or  other  returning  officer  firfl  taking  an  oath  againfl  bribery,  and 
for  the  due  execution  of  his  office.  The  candidates  likewife,  if 
required,  mufl  fwear  to  their  qualification ;  and  the  electors  in 
counties  to  theirs  ;  and  the  electors  both  in  counties  and  boroughs 
are  alfo  compellable  to  take  the  oath  of  abjuration  and  that  againfl 
bribery  and  corruption.  And  it  might  not  be  amifs,  if  the  mem- 
bers elected  were  bound  to  take  the  latter  oath,  as  well  as  the 
former ;  which  in  all  probability  would  be  much  more  effectual, 
than  adminiftring  it  only  to  the  electors. 

THE  election  being  clofed,  the  returning  officer  in  boroughs 
returns  his  precept  to  the  fheriff,  with  the  perfons  elected  by  the 
majority  :  and  the  fheriff  returns  the  whole,  together  with  the 

z  In  like  manner  the  Julian  law  Je  ambitu  fender,  he  was  reftored  to  his  credit  again, 

infli&ed    fines   and   infamy  upon   all   who  Ff.  48.  14.  i. 

were  guilty  of  corruption  at  eleftions;  but,         »4lnft.  23.     Hale  of  parl.  1 12.    Com. 

if  the  'perfon  guilty  convided  another  of-  Jo  urn.  10  &  u  May  1571. 

Y  2  writ 


180  T/je    RIGHTS  BOOK!* 

writ  for  the  county  and  the  knights  elected  thereupon,  to  the 
clerk  of  the  crown  in  chancery  ;  before  the  day  of  meeting,  if  it 
be  a  new  parliament,  or  within  fourteen  days  after  the  election, 
if  it  be  an  occafional  vacancy ;  and  this  under  penalty  of  500  /. 
If  the  fherifF  does  not  return  fuch  knights  only  as  are  duly  elected, 
he  forfeits,  by  the  old  ftatutes  of  Henry  VI,  IOQ/J  and  the  re- 
turning officer  in  boroughs  for  a  like  falfe  return  40 /;  and  they 
are  befides  liable  to  an  action,  in  which  double  damages  mall  be 
recovered,  by  the  later  ftatutes  of  king  William  :  and  any  perfon 
bribing  the  returning  officer  mall  alfo  forfeit  300 /.  But  the 
members  returned  by  him  are  the  fitting  members,  until  the 
houfe  of  commons,  upon  petition,  mail  adjudge  the  return  to 
be  falfe  and  illegal.  And  this  abftract  of  the  proceedings  at  elec- 
tions of  knights,  citizens,  and  burgeffes,  concludes  our  enquiries 
into  the  laws  and  cuftoms  more  peculiarly  relative  to  the  houfe 
of  commons. 

VI.   I  PROCEED   now,    fixthly,   to  the   method  of  making- 
laws  j  which  is  much  the  fame  in  both  houfes  :   and  I  mall  touch 
it  very  briefly,   beginning  in  the  houfe  of  commons.     But  firft  I 
muft  premife,   that  for  difpatch  of  bufinefs  each  houfe  of  parlia- 
ment has  it's  fpeaker.    The  fpeaker  of  the  houfe  of  lords,  whofe 
office  it  is  to  prefide  there,  and  manage  the  formality  of  bufinefs, 
is  the  lord  chancellor,  or  keeper  of  the  king's  great  feal,  or  any 
other  appointed  by  the  king's  commimon  :   and,  if  none  be  fb 
appointed,  the  houfe  of  lords  (it  is  faid)  may  elect.    The  fpeaker 
of  the  houfe  of  commons  is  chofen  by  the  houfe;  but  muft  be 
approved  by  the  king.    And  herein  the  ufage  of  the  two  houfes 
differs,  that  the  fpeaker  of  the  houfe  of  commons  cannot  give  his 
opinion  or  argue   any  queftion  in  the  houfe ;  but  the  fpeaker  of 
the  houfe  of  lords,  if  a  lord  of  parliament,  may.     In  each  houfe 
the  act  of  the  majority  binds  the  whole ;    and  this  majority  is 
declared  by  votes  openly  and  publicly  given  :    not  as  at  Venice, 
and  many  other  fenatorial  affemblies,  privately  or  by  ballot.    This 
latter  method  may  be  ferviceable,  to  prevent  intrigues  and  un- 
conftitutional  combinations :    but  is  impoffible  to  be  practiced 

with 


Ch.  2.  of    PERSONS.  181 

with  us;  at  leaft  in  the  houfe  of  commons,  where  every  mem- 
ber's conduct  is  fubject  to  the  future  cenfure  of  his  constituents, 
and  therefore  mould  be  openly  fubmitted  to  their  inflection. 

T  o  bring  a  bill  into  the  houfe,  if  the  relief  fought  by  it  is  of 
a  private  nature,  it  is  firfl  neceffary  to  prefer  a  petition ;  which 
muft  be  prefented  by  a  member,  and  ufually  lets  forth  the  grie- 
vance defired  to  be  remedied.  This  petition  (when  founded  on 
facts  that  may  be  in  their  nature  diiputed)  is  referred  to  a  com- 
mittee of  members,  who  examine  the  matter  alleged,  and  ac- 
cordingly report  it  to  the  houfe ;  and  then  (or,  otherwife,  upon 
the  mere  petition)  leave  is  given  to  bring  in  the  bill.  In  pub- 
lic matters  the  bill  is  brought  in  upon  motion  made  to  the  houfe, 
without  any  petition  at  all.  Formerly,  all  bills  were  drawn  in. 
the  form  of  petitions,  which  were  entered  upon  the  parliament 
rolls,  with  the  king's  anfwer  thereunto  fubjoined ;  not  in  any 
fettled  form  of  words,  but  as  the  circumftances  of  the  cafe  re- 
quired1': and  at  the  end  of  each  parliament  the  judges  drew 
them  into  the  form  of  a  flatute,  which  was  entered  on  the  Jia- 
tute-rolls.  In  the  reign  of  Henry  V,  to  prevent  miftakes  and 
abufes,  the  ftatutes  were  drawn  up  by  the  judges  before  the  end 
of  the  parliament;  and,  in  the  reign  of  Henry  VI,  bills  in 
the  form  of  ads,  according  to  the  modern  cuflom,  were  firfl 
introduced. 

THE  perfons,  directed  to  bring  in  the  bill,  prefent  it  in  a 
competent  time  to  the  houfe,  drawn  out  on  paper,  with  a  mul- 
titude of  blanks,  or  void  fpaces,  where  any  thing  occurs  that  is 
dubious,  or  neceffary  to  be  fettled  by  the  parliament  itfelf ;  (fuch, 
efpecially,  as  the  precife  date  of  times,  the  nature  and  quantity 
of  penalties,  or  of  any  fums  of  money  to  be  raifed)  being  indeed 
only  the  fceleton  of  the  bill.  In  the  houfe  of  lords,  if  the  bill 
begins  there,  it  is  (when  of  a  private  nature)  referred  to  two  of 
the  judges,  to  examine  and  report  the  ftate  of  the  facts  alleged,. 

b  See,  among  numberlefs  other  inftances,  the  articuli  cleri,  9  Edw.  II. 

ta 


1 8 2  The    RIGHTS  BOOK!. 

to  fee  that  all  neceffary  parties  confent,  and  to  fettle  all  points 
of  technical  propriety.  This  is  read  a  firfl  time,  and  at  a  con- 
venient diftance  a  fecond  time;  and  after  each  reading  the  fpeaker 
opens  to  the  houfe  the  fubftance  of  the  bill,  and  puts  the  quef- 
tion,  whether  it  mail  proceed  any  farther.  The  introduction  of 
the  bill  may  be  originally  oppofed,  as  the  bill  itfelf  may  at  ei- 
ther of  the  readings ;  and,  if  the  oppofition  fucceeds,  the  bill 
muft  be  dropt  for  that  feffions ;  as  it  muft  alfo,  if  oppofed  with 
fuccefs  in  any  of  the  fubfequent  ftages. 

AFTER  the  fecond  reading  it  is  committed,  that  is,  referred 
to  a  committee ;  which  is  either  felected  by  the  houfe  in  matters 
of  fmall  importance,  or  elfe,  upon  a  bill  of  confequence,  the 
houfe  refolves  itfelf  into  a  committee  of  the  whole  houfe.  A 
committee  of  the  whole  houfe  is  compofed  of  every  member ; 
and,  to  form  it,  the  fpeaker  quits  the  chair,  (another  member 
being  appointed  chairman)  and  may  lit  and  debate  as  a  private 
member.  In  thefe  committees  the  bill  is  debated  claufe  by  claufe, 
amendments  made,  the  blanks  filled  up,  and  fometimes  the  bill 
entirely  new  modelled.  After  it  has  gone  through  the  committee, 
the  chairman  reports  it  to  the  houfe  with  fuch  amendments  as  the 
committee  have  made ;  and  then  the  houfe  reconfider  the  whole 
bill  again,  and  the  queftion  is  repeatedly  put  upon  every  claufe 
and  amendment.  When  the  houfe  have  agreed  or  difagreed  to 
the  amendments  of  the  committee,  and  fometimes  added  new 
amendments  of  their  own,  the  bill  is  then  ordered  to  be  engroffed, 
or  written  in  a  ftrong  grofs  hand,  on  one  or  more  long  rolls  of 
parchment  fewed  together.  When  this  is  finiihed,  it  is  read  a 
third  time,  and  amendments  are  fometimes  then  made  to  it;  and, 
if  a  new  claufe  be  added,  it  is  done  by  tacking  a  feparate  piece 
of  parchment  on  the  bill,  which  is  called  a  ryder.  The  fpeaker 
then  again  opens  the  contents ;  and,  holding  it  up  in  his  hands, 
puts  the  queftion,  whether  the  bill  fliall  pafs.  If  this  is  agreed  to, 
the  title  to  it  is  then  fettled ;  which  ufed  to  be  a  general  one  for 
all  the  adls  pafled  in  the  feflion,  till  in  the  fifth  year  of  Henry  VIII 

diftincl: 


Ch.  2.  ^PERSONS.  183 

diftinct  titles  were  introduced  for  each  chapter c.  After  this,  one 
of  the  members  is  directed  to  carry  it  to  the  lords,  and  deiire 
their  concurrence;  who,  attended  by  feveral  more,  carries  it  to 
the  bar  of  the  houfe  of  peers,  and  there  delivers  it  to  their 
fpeaker,  who  comes  down  from  his  woolfack  to  receive  it. 

I  T  there  pailes  through  the  fame  forms  as  in  the  other  houfe,. 
(except  engroffing,  which  is  already  done)  and,  if  rejefted,  no 
more  notice  is  taken,  but  it  pafles  fub  filentio,  to  prevent  unbe- 
coming altercations.  But  if  it  is  agreed  to,  the  lords  fend  a  mef- 
fage  by  two  mafters  in  chancery  (or  fometimes  two  of  the  judges) 
that  they  have  agreed  to  the  fame  :  and  the  bill  remains  with  the 
lords,  if  they  have  made  no  amendment  to  it.  But  if  any  amend- 
ments are  made,  fuch  amendments  are  fent  down  with  the  bill 
to  receive  the  concurrence  of  the  commons.  If  the  commons  dif- 
agree  to  the  amendments,  a  conference  ufually  follows  between 
members  deputed  from  each  houfe;  who  for  the  moft  part  fettle 
and  adjuft  the  difference:  but,  if  both  houfes  remain  inflexible,, 
the  bill  is  dropped.  If  the  commons  agree  to  the  amendments, 
the  bill  is  fent  back  to  the  lords  by  one  of  the  members,  with  a 
meflage  to  acquaint  them  therewith.  The  fame  forms  are  ob- 
ferved,  mutatis  mutandis,  when  the  bill  begins  in  the  houfe  of 
lords.  But,  when  an  aft  of  grace  or  pardon  is  palled,  it  is  firft 
ligned  by  his  majefty,  and  then  read  once  only  in  each  of  the 
houfes,  without  any  new  engroffing  or  amendment d.  And  when 
both  houfes  have  done  with  any  bill,  it  always  is  depofited  in 
the  houfe  of  peers,  to  wait  the  royal  affent ;  except  in  the  cafe 
of  a  money-bill,  which  after  receiving  the  concurrence  of  the 
lords  is  fent  back  to  the  houfe  of  commons e. 

THE  royal  aflent  may  be  given  two  ways  :  i .  In  perfon ; 
when  the  king  comes  to  the  houfe  of  peers,  in  his  crown  and 
royal  robes,  and  fending  for  the  commons  to  the  bar,  the  titles 
of  all  the  bills  that  have  paffed  both  houfes  are  read ;  and  the 

c  Lord  Bacon  on  ufes.  8°.  326.  17  June  1747. 

*  D'ev/es  journ.  20.73.     Com.  journ.          c  Ccm.  journ.  2-j.Jul.  1660. 

king's 


1 84  The    RIGHTS  BOOK!. 

king's  anfwer  is  declared  by  the  clerk  of  the  parliament  in  Nor- 
man-French :  a  badge,  it  muft  be  owned,  (now  the  only  one 
remaining)  of  conqueft ;  and  which  one  could  wifh  to  fee  fall 
into  total  oblivion  ;  unlefs  it  be  referved  as  a  folemn  memento  to 
remind  us  that  our  liberties  are  mortal,  having  once  been  de- 
flroyed  by  a  foreign  force.  If  the  king  confents  to  a  public  bill, 
the  clerk  ufually  declares,  "  le  roy  le  veut,  the  king  wills  it  fo  to 
"  be;"  if  to  a  private  bill,  "Jbit  fait  come  il  ejl  defire,  be  it  as  it 
"  is  defired."  If  the  king  refufes  his  aflent,  it  is  in  the  gentle 
language  of  (t  le  roy  f  avijera,  the  king  will  advife  upon  it." 
When  a  money-bill  is  palled,  it  is  carried  up  and  prefented  to 
the  king  by  the  fpeaker  of  the  houfe  of  commons  ( ;  and  the 
royal  affent  is  thus  exprefl'ed,  " /<?  roy  remercie  j'es  loyal  fubjetts, 
"  accepte  lour  benevolence,  et  aujji  le  veut,  the  king  thanks  his 
"loyal  fubjects,  accepts  their  benevolence,  and  wills  it  fo  to  be." 
In  cafe  of  an  aft  of  grace,  which  originally  proceeds  from  the 
crown  and  has  the  royal  aflent  in  the  firfl  ftage  of  it,  the  clerk 
of  the  parliament  thus  pronounces  the  gratitude  of  the  fubjedr, ; 
"  les  prelats,  feigneurs,  et  commons,  en  ce  prefent  parliament  a//'em~ 
"  blees,  an  nom  de  touts  vous  autres  fiibjefts,  remercient  tres  humble^ 
"  ment  votre  majefte,  et  prient  a  Dieu  vous  donner  en  fante  bone  vie 
"  et  longue  -,  the  prelates,  lords,  and  commons,  in  this  prefent 
"  parliament  aflembled,  in  the  name  of  all  your  other  fubjecls, 
"  moft  humbly  thank  your  majefty,  and  pray  to  God  to  grant 
"you  in  health  and  wealth  long  to  live s."  2.  By  the  ftatute 
33  Hen.  VIII.  c.  21.  the  king  may  give  his  aflent  by  letters  pa- 
tent under  his  great  feal,  figned  with  his  hand,  and  notified,  in 
his  abfence,  to  both  houfes  allembled  together  in  the  high  houfe. 
And,  when  the  bill  has  received  the  royal  aflent  in  either  of 
thefe  ways,  it  is  then,  and  not  before,  a  flatute  or  a<fl  of  par- 
liament. 

THIS  flatute  or  ac~l  is  placed  among  the  records  of  the  king- 
dom ;  there  needing  no  formal  promulgation  to  give  it  the  force 

f  Rot.  Part.  $Hen.  IP.  in  Pryn.  4lnft.  50,  31.  *  D'wes  journ.  35. 

Of 


Ch.  2.  of    PERSONS.  185 

of  a  law,  as  was  neceflary  by  the  civil  law  with  regard  to  the 
emperors  edidls  :  becaufe  every  man  in  England  is,  in  judgment 
of  law,  party  to  the  making  of  an  a6l  of  parliament,  being  pre- 
fent  thereat  by  his  representatives.  However,  a  copy  thereof  is 
ufually  printed  at  the  king's  prefs,  for  the  information  of  the  whole 
land.  And  formerly,  before  the  invention  of  printing,  it  was 
ufed  to  be  publimed  by  the  iheriff  of  every  county ;  the  king's 
writ  being  lent  to  him  at  the  end  of  every  feflion,  together  with 
a  tranfcript  of  all  the  adls  made  at  that  feflion,  commanding 
him  "  lit  flat ut a  ilia,  et  omnes  articulos  in  eifdem  content os,  in  Jin- 
"  git  Its  locis  ubi  expedire  viderit,  public  c  proclamari,  ct  fir  miter  te- 
"  neri  et  obfervari  faciat."  And  the  ufage  was  to  proclaim  them 
at  his  county  court,  and  there  to  keep  them,  that  whoever  would 
might  read  or  take  copies  thereof  j  which  cuftom  continued  till 
the  reign  of  Henry  the  feventh  h. 

A  N  adl  of  parliament,  thus  made,  is  the  exercife  of  the  higheft 
authority  that  this  kingdom  acknowleges  upon  earth.  It  hath 
power  to  bind  every  fubjecT:  in  the  land,  and  the  dominions  there- 
unto belonging ;  nay,  even  the  king  himfelf,  if  particularly  na- 
med therein.  And  it  cannot  be  altered,  amended,  difpenfed  with, 
fufpended,  or  repealed,  but  in  the  fame  forms  and  by  the  fame 
authority  of  parliament :  for  it  is  a  maxim  in  law,  that  it  re- 
quires the  fame  ftrength  to  diffolve,  as  to  create  an  obligation. 
It  is  true  it  was  formerly  held,  that  the  king  might  in  many 
cafes  difpenfe  with  penal  flatutes1 :  but  now  by  ftatute  i  W.  &  M. 
ft.  2.  c.2.  it  is  declared,  that  the  fufpending  or  difpenfing  with 
laws  by  regal  authority,  without  confent  of  parliament,  is  il- 
legal. 

VII.  TH  ERE  remains  only,  in  the  feventh  and  laft  place,  to 
add  a  word  or  two  concerning  the  manner  in  which  parliaments 
may  be  adjourned,  prorogued,  or  diffolved. 

h  3  Infl.  41.    4lnft.  26.  '  Finch.  L.  81.  234. 

Z  AN 


186  The    RIGHTS  BOOK  I. 

AN  adjournment  is  no  more  than  a  continuance  of  the  feffion 
from  one  day  to  another,  as  the  word  itfelf  fignifies  :  and  this  is 
done  by  the  authority  of  each  houfe  feparately  every  day  ;  and 
fometimes  for  a  fortnight  or  a  month  together,  as  at  Chriilmas 
or  Eafter,  or  upon  other  particular  occafions.  But  the  adjourn- 
ment of  one  houfe  is  no  adjournment  of  the  otherk.  It  hath  alfo 
been  ufual,  when  his  majeily  hath  fignified  his  pleafure  that  both 
or  either  of  the  houfes  mould  adjourn  themselves  to  a  certain  day, 
to  obey  the  king's  pleafure  fo  fignified,  and  to  adjourn  accord- 
ingly1. Otherwife,  beiides  the  indecorum  of  a  refufal,  a  proro- 
gation would  affuredly  follow  ;  which  would  often  be  very  incon- 
venient to  both  public  and  private  buiinefs.  For  prorogation  puts 
an  end  to  the  feffion  ;  and  then  fuch  bills,  as  are  only  begun  and 
not  perfected,  muft  be  refumed  de  novo  (if  at  all)  in  a  fubfequent 
feffion  :  whereas,  after  an  adjournment,  all  things  continue  in 
the  fame  ftate  as  at  the  time  of  the  adjournment  made,  and  may 
be  proceeded  on  without  any  frefh  commencement. 

A  PROROGATION  is  the  continuance  of  the  parliament 
from  one  feffion  to  another,  as  an  adjournment  is  a  continuation 
of  the  feffion  from  day  to  day.  This  is  done  by  the  royal  autho- 
rity, exprefled  either  by  the  lord  chancellor  in  his  majefty's  pre- 
fence,  or  by  commlffion  from  the  crown,  or  frequently  by 
proclamation.  Both  houfes  are  neceffarily  prorogued  at  the  fame 
time  ;  it  not  being  a  prorogation  of  the  houfe  of  lords,  or  com- 
mons, but  of  the  parliament.  The  feffion  is  never  underftood 
to  be  at  an  end,  until  a  prorogation  :  though,  unlefs  fome  adl  be 
parTed  or  fome  judgment  given  in  parliament,  it  is  in  truth  no 
feffion  at  allm.  And  formerly  the  ufage  was,  for  the  king  to  give 
the  royal  aflent  to  all  fuch  bills  as  he  approved,  at  the  end  of  every 
feffion,  and  then  to  prorogue  the  parliament  -,  though  fometimes 


69i.  2ijun.i7i2. 

1  Com.  Journ.  fajjlm:  e.g.  lljun.1572.      ^Apr.iyi/.   3Feb.l74i.    ioDec.1745- 
5Apr.i6o4-  4jun.   i4Nov.   i8Dec.i6zi.         m4lnft.28.     Hale  of  parl.  38. 
lijul.  1625.  13  Sept.  1660.    25jul.  1667. 

only 


Ch.  2.  of    PERSONS.  187 

only  for  a  day  or  two":  after  which  all  bufinefs  then  depending 
in  the  houfes  was  to  be  begun  again.  Which  cuftom  obtained  fo 
ftrongly,  that  it  once  became  a  queftion0,  whether  giving  the 
royal  aflent  to  a  fingle  bill  did  not  of  courfe  put  an  end  to  the 
feflion.  And,  though  it  was  then  refolved  in  the  negative,  yet 
the  notion  was  fo  deeply  rooted,  that  the  ftatute  i  Car.  I.  c.  7. 
was  pafled  to  declare,  that  the  king's  aflent  to  that  and  fome  other 
acts  fhould  not  put  an  end  to  the  feffion  j  and,  even  fo  late  as  the 
restoration  of  Charles  II,  we  find  a  provifo  tacked  to  the  firft  bill 
then  enacted p,  that  his  majefty's  aflent  thereto  fhould  not  de- 
termine the  feflion  of  parliament.  But  it  now  feems  to  be  al- 
lowed, that  a  prorogation  muft  be  expreffly  made,  in  order  to 
determine  the  feflion.  And,  if  at  the  time  of  an  actual  rebellion, 
or  imminent  danger  of  invafion,  the  parliament  fhall  be  feparated 
by  adjournment  or  prorogation,  the  king  is  empowered  q  to  call 
them  together  by  proclamation,  with  fourteen  days  notice  of  the 
time  appointed  for  their  reaflembling. 

A  DISSOLUTION  is  the  civil  death  of  the  parliament ;  and 
this  may  be  effected  three  ways  :  i .  By  the  king's  will,  expreffed 
either  in  perfon  or  by  reprefentation.  For,  as  the  king  has  the 
fole  right  of  convening  the  parliament,  fo  alfo  it  is  a  branch  of 
the  royal  prerogative,  that  he  may  (whenever  he  pleafes)  pro- 
rogue the  parliament  for  a  time,  or  put  a  final  period  to  it's  exif- 
tence.  If  nothing  had  a  right  to  prorogue  or  diffolve  a  parlia- 
ment but  itfelf,  it  might  happen  to  become  perpetual.  And  this 
would  be  extremely  dangerous,  if  at  any  time  it  fhould  attempt 
to  encroach  upon  the  executive  power  :  as  was  fatally  experien- 
ced by  the  unfortunate  king  Charles  the  firfl ;  who,  having  un- 
advifedly  pafled  an  act  to  continue  the  parliament  then  in  being 
till  fuch  time  as  it  fhould  pleafe  to  diflblve  itfelf,  at  laft  fell  a  fa- 
crifice  to  that  inordinate  power,  which  he  himfelf  had  confented 
to  give  them.  It  is  therefore  extremely  neceflary  that  the  crown 
fhould  be  empowered  to  regulate  the  duration  of  thefe  aflemblies, 

*  Com.  Journ.  21  Oft.  1553.  r  Stat.  12  Car.  II.  c.  i. 

•  Ibid.  21  Nov.  1554.  <!  Stat.  jcGeo.II.  c.  25. 

Z  2  under 


1 88  Tlw    RIGHTS  BOOK!. 

under  the  limitations  which  the  EngliSh  constitution  has  prefcri- 
bed  :  fo  that,  on  the  one  hand,  they  may  frequently  and  regu- 
larly come  together,  for  the  difpatch  of  bufmefs  and  redrefs  of 
grievances ;  and  may  not,  on  the  other,  even  with  the  confent 
of  the  crown,  be  continued  to  an  inconvenient  or  unconStitu- 
tional  length. 

2.  A    PARLIAMENT  may  be  diSfolved  by  the  demife  of 
the  crown.  This  diilolution  formerly  happened  immediately  up- 
on the  death  of  the  reigning  ibvereign,  for  he  being  coniidered 
in   law  as  the    head  of  the    parliament,    (caput,  principium,   et 

fans]  that  failing,  the  whole  body  was  held  to  be  extinct.  But, 
the  calling  a  new  parliament  immediately  on  the  inauguration  of 
the  fuccellbr  being  found  inconvenient,  and  dangers  being  appre- 
hended from  having  no  parliament  in  being  in  cafe  of  a  difputed 
fucceffion,  it  was  enacted  by  the  flatutes  7  6c  8  W.  III.  c.  15.  and 
6  Ann.  c.j.  that  the  parliament  in  being  mail  continue  for  fix 
months  after  the  death  of  any  king  or  queen,  unlefs  fooner  pro- 
rogued or  diSSolved  by  the  fucceSTor  :  that,  if  the  parliament  be, 
at  the  time  of  the  king's  death,  feparated  by  adjournment  or 
prorogation,  it  mall  notwithstanding  affemble  immediately :  and 
that,  if  no  parliament  is  then  in  being,  the  members  of  the  laft 
parliament  fhall  aSfemble,  and  be  again  a  parliament. 

3.  LASTLY,  a  parliament  may  be  diffolved  or  expire  by 
length  of  time.     For  if  either  the  legillative  body  were  perpe- 
tual ;  or  might  laft  for  the  life  of  the  prince  who  convened  them 
as  formerly  ;  and  were  fo  to  be  fupplied,  by  occasionally  filling 
the  vacancies  with    new   reprefentatives  j    in  thefe  cafes,    if   it 
were  once  corrupted,  the  evil  would  be  pail  all  remedy  :    but 
when  different  bodies  fucceed  each  other,  if  the  people  fee  caufe 
to  difapprove  of  the  prefent,  they  may  rectify  it's  faults  in  the 
next.     A  legislative  aSTembly  alfo,  which  is  fure  to  be  feparated 
again,   (whereby  it's  members  will  themfelves  become  private 
men,  and  Subject  to  the  full  extent  of  the  laws  which  they  have 
enacted  for  others)  will  think  themfelves  bound,  in  intereft  as 

well 


Ch,  2.  ^PERSONS.  189 

well  as  duty,  to  make  only  fuch  laws  as  are  good.  The  utmofl 
extent  of  time  that  the  fame  parliament  was  allowed  to  fit,  by 
the  ftatute  6  W.  6c  M.  c.  2.  was  three  years  ;  after  the  expira- 
tion of  which,  reckoning  from  the  return  of  the  firft  fummons, 
the  parliament  was  to  have  no  longer  continuance.  But  by  the 
ftatute  i  Geo.  I.  ft.  2.  c.  38.  (in  order,  profefledly,  to  prevent 
the  great  and  continued  expenfes  of  frequent  elections,  and  the 
violent  heats  and  animofities  confequent  thereupon,  and  for  the 
peace  and  fecurity  of  the  government  then  juft  recovering  from 
the  late  rebellion )  this  term  was  prolonged  to  feven  years  ;  and 
what  alone  is  an  inftance  of  the  vaft  authority  of  parliament, 
the  very  fame  houfe,  that  was  chofen  for  three  years,  enacted  it's 
own  continuance  for  feven.  So  that,  as  our  conftitution  now 
ftands,  the  parliament  mufl  expire,  or  die  a  natural  death,  at  the 
end  of  every  feventh  year ;  if  not  fooner  diflblved  by  the  royal 
prerogative, 


i go  The    RIGHTS  BOOK!. 


CHAPTER     THE     THIRD. 
OF    THE    KING,     AND    HIS    TITLE. 


THE  fuprcme  executive  power  of  thefe  kingdoms  is  veiled 
by  our  laws  in  a  (ingle  perfon,  the  king  or  queen  :  for  it 
matters  not  to  which  fex  the  crown  defcends ;  but  the  perfon 
entitled  to  it,  whether  male  or  female,  is  immediately  inverted 
•with  all  the  enfigns,  rights,  and  prerogatives  of  fovereign  power; 
as  is  declared  by  flatute  i  Mar.  ft.  3.  c.  i. 

I  N  difcourfing  of  the  royal  rights  and  authority,  I  fliall  con- 
fider  the  king  under  fix  diftinct  views :  i .  With  regard  to 
his  title.  2.  His  royal  family.  3.  His  councils.  4.  His  duties. 
5.  His  prerogative.  6.  His  revenue.  And,  firft,  with  regard 
to  his  title. 

TH  E  executive  power  of  the  Englifh  nation  being  veiled  in  a 
fingle  perfon,  by  the  general  confent  of  the  people,  the  evidence 
of  which  general  confent  is  long  and  immemorial  ufage,  it  be- 
came necellary  to  the  freedom  and  peace  of  the  ftate,  that  a  rule 
mould  be  laid  down,  uniform,  univerfal,  and  permanent ;  in  or- 
der to  mark  out  with  precifion,  'who  is  that  fingle  perfon,  to  whom 
are  committed  (in  fubfervience  to  the  law  of  the  land)  the  care 
and  protection  of  the  community;  and  to  whom,  in  return,  the 
duty  and  allegiance  of  every  individual  are  due.  It  is  of  the 
higheft  importance  to  the  public  tranquillity,  and  to  the  con- 

fciences 


Ch.  3.  of    PERSONS.  191 

fciences  of  private  men,  that  this  rule  fhould  be  clear  and  in- 
difputable  :  and  our  conftitution  has  not  left  us  in  the  dark  upon 
this  material  occafion.  It  will  therefore  be  the  endeavour  of  this 
chapter  to  trace  out  the  coniKtutional  doctrine  of  the  royal  fuc- 
cemon,  with  that  freedom  and  regard  to  truth,  yet  mixed  with 
that  reverence  and  refpect,  which  the  principles  of  liberty  and 
the  dignity  of  the  fubjcct  require. 

TH  E  grand  fundamental  maxim  upon  which  the  jus  coronae, 
or  right  of  fucceflion  to  the  throne  of  thefe  kingdoms,  depends, 
I  take  to  be  this  :  "  that  the  crown  is,  by  common  law  and 
«*  constitutional  cuftom,  hereditary ;  and  this  in  a  manner  pecu- 
"  liar  to  itfelf :  but  that  the  right  of  inheritance  may  from  time 
"  to  time  be  changed  or  limited  by  act  of  parliament ;  under 
"  which  limitations  the  crown  ftill  continues  hereditary."  And 
this  proposition  it  will  be  the  bulinefs  of  this  chapter  to  prove, 
in  all  it's  branches  :  firft,  that  the  crown  is  hereditary;  fecondly, 
that  it  is  hereditary  in  a  manner  peculiar  to  itfelf;  thirdly,  that 
this  inheritance  is  fubject  to  limitation  by  parliament ;  laftly, 
that  when  it  is  fo  limited,  it  is  hereditary  in  the  new  proprietor. 

i.  FIRST,  it  is  in  general  hereditary,  or  defcendible  to  the. 
next  heir,  on  the  death  or  demife  of  the  laft  proprietor.  All  regal 
governments  muft  be  either  hereditary  or  elective  :  and,,  as  I  be- 
lieve there  is  no  inftance  wherein  the  crown  of  England  has  ever 
been  afferted  to  be  elective,  except  by  the  regicides  at  the  infamous 
and  unparalleled  trial  of  king  Charles  I,  it  muft  of  confequence 
be  hereditary.  Yet  while  I  aflert  an  hereditary,  I  by  no  means 
intend  a  jure  divino,  title  to  the  throne.  Such  a  title  may  be  al- 
lowed to  have  fubfifted  under  the  theocratic  establishments  of  the 
children  of  Ifrael  in  Paleftine  :  but  it  never  yet  fubfifted  in  any 
other  country  ;  fave  only  fo  far  as  kingdoms,  like  other  human 
fabrics,  are  fubject  to  the  general  and  ordinary  difpenfations  of 
providence.  Nor  indeed  have  zjure  divino  and  an  hereditary  right 
any  neceffary  connexion  with  each  other ;  as  fome  have  very 
weakly  imagined.  The  titles  of  David  and  Jehu  were  equally 

jure 


1 9 2  T'he    RIGHTS  BOOK!. 

jure  divino,  as  thofe  of  either  Solomon  or  Ahab  ;  and  yet  David 
flew  the  fons  of  his  predeceffor,  and  Jehu  his  predeceiTor  him- 
felf.  And  when  our  kings  have  the  fame  warrant  as  they  had, 
whether  it  be  to  fit  upon  the  throne  of  their  fathers,  or  to  de- 
ftroy  the  houfe  of  the  preceding  fovereign,  they  will  then,  and 
not  before,  poffefs  the  crown  of  England  by  a  right  like  theirs, 
immediately  derived  from  heaven.  The  hereditary  right,  which 
the  laws  of  England  acknowlege,  owes  it's  origin  to  the  foun- 
ders of  our  constitution,  and  to  them  only.  It  has  no  relation  to, 
nor  depends  upon,  the  civil  laws  of  the  Jews,  the  Greeks,  the 
Romans,  or  any  other  nation  upon  earth  :  the  municipal  laws  of 
one  fociety  having  no  connexion  with,  or  influence  upon,  the  fun- 
damental polity  of  another.  The  founders  of  our  Englim  mo- 
narchy might  perhaps,  if  they  had  thought  proper,  have  made 
it  an  eledlive  monarchy  :  but  they  rather  chofe,  and  upon  good 
reafon,  to  eftablifh  originally  a  fucceflion  by  inheritance.  This 
has  been  acquiefced  in  by  general  confent ;  and  ripened  by  de- 
grees into  common  law  :  the  very  fame  title  that  every  private 
man  has  to  his  own  eftate.  Lands  are  not  naturally  defcendible 
any  more  than  thrones  :  but  the  law  has  thought  proper,  for  the 
benefit  and  peace  of  the  public,  to  eftablim  hereditary  fucceffion 
in  one  as  well  as  the  other. 

I  T  muft  be  owned,  an  eledlive  monarchy  feems  to  be  the  moft 
obvious,  and  beft  fuited  of  any  to  the  rational  principles  of  govern- 
ment, and  the  freedom  of  human  nature  :  and  accordingly  we 
find  from  hiftory  that,  in  the  infancy  and  firft  rudiments  of  almoft 
every  ftate,  the  leader,  chief  magistrate,  or  prince,  hath  ufually  been 
elective.  And,  if  the  individuals  who  compofe  that  ftate  could 
always  continue  true  to  firft,  principles,  uninfluenced  by  paffion 
or  prejudice,  unaffailed  by  corruption,  and  unawed  by  violence, 
elective  fucceffion  were  as  much  to  be  defired  in  a  kingdom,  as 
in  other  inferior  communities.  The  beft,  the  wife  ft,  and  the 
braveft  man  would  then  be  fure  of  receiving  that  crown,  which 
his  endowments  have  merited ;  and  the  fenfe  of  an  unbiafled 
majority  would  be  dutifully  acquiefced  in  by  the  few  who  were 

of 


Ch.  3.  of    PERSONS.  193 

of  different  opinions.  But  hiftory  and  obfervation  will  inform  us, 
that  elections  of  every  kind  (in  the  prefent  ftate  of  human  na- 
ture) are  too  frequently  brought  about  by  influence,  partiality, 
and  artifice  :  and,  even  where  the  cafe  is  otherwife,  thefe  prac- 
tices will  be  often  fufpe&ed,  and  as  conftantly  charged  upon  the 
fuccefsful,  by  a  fplenetic  difappointed  minority.  This  is  an  evil 
to  which  all  focieties  are  liable ;  as  well  thofe  of  a  private  and 
domeftic  kind,  as  the  great  community  of  the  public,  which  re- 
gulates and  includes  the  reft.  But  in  the  former  there  is  this  ad- 
vantage ;  that  fuch  fufpicions,  if  falfe,  proceed  no  farther  than 
jealoufies  and  murmurs,  which  time  will  effectually  fupprefs  j 
and,  if  true,  the  injuftice  may  be  remedied  by  legal  means,  by 
an  appeal  to  thofe  tribunals  to  which  every  member  of  fociety 
has  (  by  becoming  fuch)  virtually  engaged  to  fubmit.  Whereas, 
in  the  great  and  independent  fociety,  which  every  nation  com- 
pofes,  there  is  no  fuperior  to  refort  to  but  the  law  of  nature ;  no 
method  to  redrefs  the  infringements  of  that  law,  but  the  adtual 
exertion  of  private  force.  As  therefore  between  two  nations, 
complaining  of  mutual  injuries,  the  quarrel  can  only  be  decided 
by  the  law  of  arms ;  fo  in  one  and  the  fame  nation,  when  the 
fundamental  principles  of  their  common  union  are  fuppofed  to  be 
invaded,  and  more  efpecially  when  the  appointment  of  their  chief 
magiftrate  is  alleged  to  be  unduly  made,  the  only  tribunal  to 
which  the  complainants  can  appeal  is  that  of  the  God  of  battels, 
the  only  procefs  by  which  the  appeal  can  be  carried  on  is  that  of 
a  civil  and  inteftine  war.  An  hereditary  fuccefllon  to  the  crown 
is  therefore  now  eftablifhed,  in  this  and  moft  other  countries,  in 
order  to  prevent  that  periodical  bloodfhed  and  mifery,  which  the 
hiftory  of  antient  imperial  Rome,  and  the  more  modern  expe- 
rience of  Poland  and  Germany,  may  fhew  us  are  the  confequen- 
ces  of  eledlive  kingdoms, 

2.  BUT,  fecondly,  as  to  the  particular  mode  of  inheritance, 
it  in  general  correfponds  with  the  feodal  path  of  defcents,  chalked 
out  by  the  common  law  in  the  fucceffion  to  landed  eftates ;  yet 
with  one  or  two  material  exceptions.  Like  them,  the  crown  will 

A  a  defcend 


194  l^e    RIGHTS  BOOK!. 

defcend  lineally  to  the  iflue  of  the  reigning  monarch  ;  as  it  did 
from  king  John  to  Richard  II,  through  a  regular  pedigree  of  fix 
lineal  generations.  As  in  them,  the  preference  of  males  to  females, 
and  the  right  of  primogeniture  among  the  males,  are  ftridtly  ad- 
hered to.  Thus  Edward  V  fucceeded  to  the  crown,  in  preference 
to  Richard  his  younger  brother  and  Elizabeth  his  elder  filler.  Like 
them,  on  failure  of  the  male  line,  it  delcends  to  the  iflue  female; 
according  to  the  antient  Britifli  cufrom  remarked  by  Tacitus  % 
" Jolen  t  Joeminarum  duftu  bellare,  et  fexum  in  wiper  Us  non  dijcer- 
"  nere."  Thus  Mary  I  fucceeded  to  Edward  VI ;  and  the  line  of 
Margaret  queen  of  Scots,  the  daughter  of  Henry  VII,  fucceeded 
on  failure  of  the  line  of  Henry  VIII,  his  fon.  But,  among  the 
females,  the  crown  defcends  by  right  of  primogeniture  to  the 
eldefl  daughter  only  and  her  iffue;  and  not,  as  in  common  inhe- 
ritances, to  all  the  daughters  at  once ;  the  evident  necefllty  of  a 
fole  fucceflion  to  the  throne  having  occafioned  the  royal  law  of 
defcents  to  depart  from  the  common  law  in  this  refpedl :  and 
therefore  queen  Mary  on  the  death  of  her  brother  fucceeded  to 
the  crown  alone,  and  not  in  partnerfhip  with  her  lifter  Elizabeth.. 
Again  :  the  doctrine  of  reprefentation  prevails  in  the  defcent  of 
the  crown,  as  it  does  in  other  inheritances ;  whereby  the  lineal 
defcendants  of  any  perfon  deceafed  (land  in  the  fame  place  as  their 
anceftor,  if  living,  would  have  done.  Thus  Richard  II  fucceeded 
his  grandfather  Edward  III,  in  right  of  his  father  the  black  prince ; 
to  the  exclufion  of  all  his  uncles,  his  grandfather's  younger  child- 
ren. Laftly,  on  failure  of  lineal  defcendants,  the  crown  goes  to 
the  next  collateral  relations  of  the  late  king ;  provided  they  are 
lineally  defcended  from  the  blood  royal,  that  is,  from  that  royal 
flock  which  originally  acquired  the  crown.  Thus  Henry  I  fuc- 
ceeded to  William  II,  John  to  Richard  I,  and  James  I  to  Eliza- 
beth; being  all  derived  from  the  conqueror,  who  was  then  the 
only  regal  flock.  But  herein  there  is  no  objection  (as  in  the  cafe 
of  common  defcents)  to  the  fucceffion  of  a  brother,  an  uncle,  or 
other  collateral  relation,  of  the  half  blood ;  that  is,  where  the 
relationfhip  proceeds  not  from  the  fame  couple  of  anceflors  (which 

"  in  vit.  Agricalae. 

conftitutes 


Ch.  3.  of   PERSONS. 

conftitutes  a  kinfman  of  the  whole  blood)  but  from  a  Jingle  an- 
ceftor  only ;  as  when  two  perfons  are  derived  from  the  fame  fa- 
ther, and  not  from  the  fame  mother,  or  vice  verfa:  provided  only, 
that  the  one  anceftor,  from  whom  both  are  defcended,  be  that  from 
whofe  veins  the  blood  royal  is  communicated  to  each.  Thus 
Mary  I  inherited  to  Edward  VI,  and  Elizabeth  inherited  to  Mary ; 
all  born  of  the  fame  father,  king  Henry  VIII,  but  all  by  different 
mothers.  The  reafon  of  which  diverfity,  between  royal  and  com- 
mon defcents,  will  be  better  underftood  hereafter,  when  we  ex- 
amine the  nature  of  inheritances  in  general. 

3.  THE  doctrine  of  hereditary  right  does  by  no  means  imply 
an  indefeafible  right  to  the  throne.  No  man  will,  I  think,  affert 
this,  that  has  confidered  our  laws,  conftitution,  and  hiftory,  with- 
out prejudice,  and  with  any  degree  of  attention.  It  is  unquef- 
tionably  in  the  breaft  of  the  fupreme  legiflative  authority  of  this 
kingdom,  the  king  and  both  houfes  of  parliament,  to  defeat  this 
hereditary  right;  and,  by  particular  entails,  limitations,  and  pro- 
viiions,  to  exclude  the  immediate  heir,  and  vefl  the  inheritance 
in  any  one  elfe.  This  is  flridtly  confonant  to  our  laws  and  con- 
ftitution  ;  as  may  be  gathered  from  the  expreflion  fo  frequently 
ufed  in  our  ftatute  book,  of  "  the  king's  majefty,  his  heirs,  and 
"  fucceffors."  In  which  we  may  obferve,  that  as  the  word, 
"  heirs,"  neceflarily  implies  an  inheritance  or  hereditary  right, 
generally  fubfifting  in  the  royal  perfon  ;  fo  the  word,  "  fucceffors," 
diftindtly  taken,  muft  imply  that  this  inheritance  may  fometimes 
be  broke  through ;  or,  that  there  may  be  a  fucceffor,  without 
being  the  heir,  of  the  king.  And  this  is  fo  extremely  reafon- 
able,  that  without  fuch  a  power,  lodged  fomewhere,  our  polity 
would  be  very  defective.  For,  let  us  barely  fuppofe  fo  melan- 
choly a  cafe,  as  that  the  heir  apparent  mould  be  a  lunatic,  an 
idiot,  or  otherwife  incapable  of  reigning  :  how  miferable  would 
the  condition  of  the  nation  be,  if  he  were  alfo  incapable  of  being 
fet  afide  !  —  It  is  therefore  neceflary  that  this  power  mould  be 
lodged  fomewhere  :  and  yet  the  inheritance,  and  regal  dignity, 
would  be  very  precarious  indeed,  if  this  power  were  exprejly  and 

A  a  2  avowedly 


196  The    RIGHTS  BOOK!. 

avowedly  lodged  in  the  hands  of  the  fubjeft  only,  to  be  exerted 
whenever  prejudice,  caprice,  or  difcontent  mould  happen  to  take 
the  lead.  Confequently  it  can  no  where  be  fo  properly  lodged  as 
in  the  two  houfes  of  parliament,  by  and  with  the  confent  of  the 
reigning  king ;  who,  it  is  not  to  be  fuppofed,  will  agree  to  any 
thing  improperly  prejudicial  to  the  rights  of  his  own  defendants. 
And  therefore  in  the  king,  lords,  and  commons,  in  parliament 
aflembled,  our  laws  have  expreflly  lodged  it. 

4.  BUT,  fourthly  j  however  the  crown  may  be  limited  or 
transferred,  it  ftill  retains  it's  defcendible  quality,  and  becomes 
hereditary  in  the  wearer  of  it.  And  hence  in  our  law  the  king  is 
faid  never  to  die,  in  his  political  capacity ;  though,  in  common 
with  other  men,  he  is  fubjecl:  to  mortality  in  his  natural  :  becaufe 
immediately  upon  the  natural  death  of  Henry,  William,  or  Ed- 
ward, the  king  furvives  in  his  fucceflbr.  For  the  right  of  the 
crown  vefts,  eo  inftanti,  upon  his  heir ;  either  the  haeres  natus,  if 
the  courfe  of  defcent  remains  unimpeached,  or  the  haeres  fatfus, 
if  the  inheritance  be  under  any  particular  fettlement.  So  that 
there  can  be  no  interregnum;  but,  as  fir  Matthew  Hale  b  obferves, 
the  right  of  fovereignty  is  fully  inverted  in  the  fucceflbr  by  the 
very  defcent  of  the  crown.  And  therefore,  however  acquired,  it 
becomes  in  him  abfolutely  hereditary>  unlefs  by  the  rules  of  the 
limitation  it  is  otherwife  ordered  and  determined.  In  the  fame 
manner  as  landed  eftates,  to  continue  our  former  companion,  are 
by  the  law  hereditary,  or  defcendible  to  the  heirs  of  the  owner ; 
but  ftill  there  exifts  a  power,  by  which  the  property  of  thofe 
lands  may  be  transferred  to  another  perfon.  If  this  transfer  be 
made  limply  and  abfolutely,  the  lands  will  be  hereditary  in  the 
new  owner,  and  defcend  to  his  heir  at  law :  but  if  the  transfer 
be  clogged  with  any  limitations,  conditions,  or  entails,  the  lands 
mull  defcend  in  that  chanel,  fo  limited  and  prefcribed,  and  no  other. 

IN   thefe  four  points  conlifts,  as  I  take  it,  the  constitutional 
notion  of  hereditary  right  to  the  throne  :  which  will  be  ftill  far- 

"  iHift.  P.  C.6i. 

ther 


Ch.  3.  of   PERSONS.  197 

ther  elucidated,  and  made  clear  beyond  all  difpute,  from  a  fhort 
hiftorical  view  of  the  fucceflions  to  the  crown  of  England,  the 
doctrines  of  our  antient  lawyers,  and  the  feveral  acts  of  parliar 
ment  that  have  from  time  to  time  been  made,  to  create,  to  de- 
clare, to  confirm,  to  limit,  or  to  bar,  the  hereditary  title  to  the 
throne.  And  in  the  purfuit  of  this  enquiry  we  mall  find,  that 
from  the  days  of  Egbert,  the  firft  fole  monarch  of  this  kingdom, 
even  to  the  prefent,  the  four  cardinal  maxims  above-mentioned 
have  ever  been  held  the  conftitutional  canons  of  fuccefllon.  It  is 
true,  this  fuccefllon,  through  fraud,  or  force,  or  fometimes  through 
neceffity,  when  in  hoftile  times  the  crown  defcended  on  a  minor 
or  the  like,  has  been  very  frequently  fufpended ;  but  has  always 
at  laft  returned  back  into  the  old  hereditary  chanel,  though 
fometimes  a  very  confiderable  period  has  intervened.  And,  even 
in  thofe  inflances  where  the  fucceffion  has  been  violated,  the 
crown  has  ever  been  looked  upon  as  hereditary  in  the  wearer  of 
it.  Of  which  the  ufurpers  themfelves  were  fa  fenfible,  that  they 
for  the  moft  part  endeavoured  to  vamp  up  fome  feeble  (hew  of  a 
title  by  defcent,  in  order  to  amufe  the  people,  while  they  gained 
the  pofleffion  of  the  kingdom.  And,  when  poffeffion  was  once 
gained,  they  considered  it  as  the  purchafe  or  acquifition  of  a  new 
eftate  of  inheritance,  and  tranfmitted  or  endeavoured  to  tranfmit  it 
to  their  own  pofterity,  by  a  kind  of  hereditary  right  of  ufurpation. 

KING  Egbert  about  the  year  800,  found  himfelf  in  poffeffion 
of  the  throne  of  the  weft  Saxons,  by  a  long  and  undifturbed  def- 
cent from  his  anceftors  of  above  three  hundred  years.  How  his 
anceflors  acquired  their  title,  whether  by  force,  by  fraud,  by 
contract,  or  by  election,  it  matters  not  much  to  enquire;  and  is 
indeed  a  point  of  fuch  high  antiquity,  as  muft  render  all  enqui- 
ries at  beft  but  plaufible  guelfes.  His  right  muft  be  fuppofed  in- 
difputably  good,  becaufe  we  know  no  better.  The  other  king- 
doms of  the  heptarchy  he  acquired,  fome  by  confent,  but  moft 
by  a  voluntary  fubmifllon.  And  it  is  an  eftablilhed  maxim  in  civil 
polity,  and  the  law  of  nations,  that  when  one  country  is  united 
to  another  in  fuch  a  manner,  as  that  one  keeps  it's  government 

and 


198  37je    RIGHTS  BOOK!. 

and  ftates,  and  the  other  lofes  them ;  the  latter  entirely  afTimi- 
lates  or  is  melted  down  in  the  former,  and  muft  adopt  it's  laws 
and  cultoms  c.  And  in  purfuance  of  this  maxim  there  hath  ever 
been,  fince  the  union  of  the  heptarchy  in  king  Egbert,  a  general 
acquiefcence  under  the  hereditary  monarchy  of  the  weft  Saxons, 
through  all  the  united  kingdoms. 

FROM  Egbert  to  the  death  of  Edmund  Ironfide,  a  period  of 
above  two  hundred  years,  the  crown  defcended  regularly,  through 
a  fucceflion  of  fifteen  princes,  without  any  deviation  or  interrup- 
tion •,  fave  only  that  king  Edred,  the  uncle  of  Edwy,  mounted 
the  throne  for  about  nine  years,  in  the  right  of  his  nephew  a 
minor,  the  times  being  very  troublelbme  and  dangerous.  But  this 
was  with  a  view  to  preferve,  and  not  to  deftroy,  the  fucceffion ; 
and  accordingly  Edwy  fucceeded  him. 

KING  Edmund  Ironfide  was  obliged,  by  the  hoftile  irruption 
of  the  Danes,  at  firft  to  divide  his  kingdom  with  Canute,  king 
of  Denmark ;  and  Canute,  after  his  death,  feifed  the  whole  of 
it,  Edmund's  fons  being  driven  into  foreign  countries.  Here  the 
fuccefTion  was  fufpended  by  adual  force,  and  a  new  family  intro- 
duced upon  the  throne :  in  whom  however  this  new  acquired 
throne  continued  hereditary  for  three  reigns ;  when,  upon  the 
death  of  Hardiknute,  the  antient  Saxon  line  was  reftored  in  the 
perfon  of  Edward  the  confelTor. 

HE  was  not  indeed  the  true  heir  to  the  crown,  being  the 
younger  brother  of  king  Edmund  Ironfide,  who  had  a  fon  Ed- 
ward, iirnamed  (from  his  exile)  the  outlaw,  ftill  living.  But  this 
fon  was  then  in  Hungary;  and,  the  Englifli  having  jufl  fhaken 
off  the  Danim  yoke,  it  was  neceflary  that  fomebody  on  the  fpot 
mould  mount  the  throne ;  and  the  confeffor  was  the  next  of  the 
royal  line  then  in  England.  On  his  deceafe  without  iflue,  Harold II 
ufurped  the  throne ;  and  almofl  at  the  fame  inftant  came  on  the 
Norman  invafion  :  the  right  to  the  crown  being  all  the  time  in 

'  Puff.  L.  of  N.  and  N.  b.  8.  c.  12.  §.  6. 

Egdar, 


Ch.  3.  of  PERSONS. 

Edgar,  firnamed  Atheling,  (which  fignifies  jn  the  Saxon  language 
the  firft  of  the  blood  royal)  who  was  the  fon  of  Edward  the  out- 
law, and  grandfon  of  Edmund  Ironfide ;  or,  as  Matthew  Paris  d 
well  exprefles  the  fenfe  of  our  old  conftitution,  "  Edmnndus  au~ 
€<  tern  latusferreum,  rex  naturalis  de  Jlirpe  regum,  genult  Edivar- 
"  dum ;  et  Ediaardus  genuit  Edgar  urn,  cut  de  jure  debebatur  reg- 
"  num  Anglorum." 

WILLIAM  the  Norman  claimed  the  crown  by  virtue  of  a 
pretended  grant  from  king  Edward  the  confeffor ;  a  grant  which, 
if  real,  was  in  itfelf  utterly  invalid  :  becaufe  it  was  made,  as 
Harold  well  obferved  in  his  reply  to  William's  demand*,  "  abf- 
*'  que  generah  jenatus  et  popnh  conventu  et  ediffo  •,"  which  alfo  very 
plainly  implies,  that  it  then  was  generally  underftood  that  the 
king,  with  conlent  of  the  general  council,  might  difpofe  of  the 
crown  and  change  the  line  of  fucceffion.  William's  title  how- 
ever was  altogether  as  good  as  Harold's,  he  being  a  mere  private 
fubject,  and  an  utter  Granger  to  the  royal  blood.  Edgar  Atheling's- 
undoubted  right  was  overwhelmed  by  the  violence  of  the  times; 
though  frequently  aflertcd  by  the  Engliih  nobility  after  the  con- 
queft,  till  fuch  time  as  he  died  without  iffue  :  'but  all  their  at- 
tempts proved  unfuccefsful,  and  only  ferved  the  more  firmly  to 
eftablifh  the  crown  in  the  family  which  had  newly  acquired  it. 

THIS  conqueft  then  by  William  of  Normandy  was,  like 
that  of  Canute  before,  a  forcible  transfer  of  the  crown  of  Eng- 
land into  a  new  family  :  but,  the  crown  being  fo  transferred,  all 
the  inherent  properties  of  the  crown  were  with  it  transferred  alfo. 
For,  the  victory  obtained  at  Haftings  not  being {  a  victory  over  the 
nation  collectively,  but  only  over  the  perfon  of  Harold,  the  only 
right  that  the  conqueror  could  pretend  to  acquire  thereby,  was. 
the  right  to  poffeis  the  crown  of  England,  not  to  alter  the  nature 
of  the  government.  And  therefore,  as  the  English  laws  ilill  re- 
mained in  force,  he  muft  neceffarily  take  the  crown  fubject  to 
thofe  laws,  and  with  all  it's  inherent  properties;  the  firft  and 

*  A.D.  1066.  f  Hale,  Hift.  C.  L.  c.5.     Seld.  review 

c  William  of  Malmfb.  /.  3.  of  tithes,  c.  8. 

principal 


2OO  The    RIGHTS  BOOK!. 

principal  of  which  was  it's  defcendibility.  Here  then  we  muft 
drop  our  race  of  Saxon  kings,  at  leaft  for  a  while,  and  derive 
our  defcents  from  William  the  conqueror  as  from  a  new  flock, 
who  acquired  by  right  of  war  (fuch  as  it  is,  yet  ftill  the  dernier 
refort  of  kings)  a  flrong  and  undifputed  title  to  the  inheritable 
crown  of  England. 

ACCORDINGLY  it  defcended  from  him  to  his  fons  Wil- 
liam II  and  Henry  I.  Robert,  it  muft  be  owned,  his  eldeft  fon, 
was  kept  out  of  pofleflion  by  the  arts  and  violence  of  his  brethren; 
who  perhaps  might  proceed  upon  a  notion,  which  prevailed  for 
fome  time  in  the  law  of  defcents,  (though  never  adopted  as  the 
rule  of  public  fuccemons8)  that  when  the  eldeft  fon  was  already 
provided  for  (as  Robert  was  conftituted  duke  of  Normandy  by 
his  father's  will)  in  fuch  a  cafe  the  next  brother  was  entitled  to 
enjoy  the  reft  of  their  father's  inheritance.  But,  as  he  died  with- 
out iffue,  Henry  at  laft  had  a  good  title  to  the  throne,  whatever 
he  might  have  at  firft. 

STEPHEN  of  Blois,  who  fucceeded  him,  was  indeed  the 
grandfon  of  the  conqueror,  by  Adelicia  his  daughter,  and  claimed 
the  throne  by  a  feeble  kind  of  hereditary  right;  not  as  being  the 
neareft  of  the  male  line,  but  as  the  neareft  male  of  the  blood 
royal,  excepting  his  elder  brother  Theobald,  who  was  earl  of 
Blois,  and  therefore  feems  to  have  waved,  as  he  certainly  never 
infifted  on,  fo  troublefome  and  precarious  a  claim.  The  real  right 
was  in  the  emprefs  Matilda  or  Maud,  the  daughter  of  Henry  I; 
the  rule  of  fucceffion  being  (where  women  are  admitted  at  all) 
that  the  daughter  of  a  fon  ihall  be  preferred  to  the  fon  of  a  daugh- 
ter. So  that  Stephen  was  little  better  than  a  mere  ufurper ;  and 
therefore  he  rather  chofe  to  rely  on  a  title  by  election  h,  while  the 
emprefs  Maud  did  not  fail  to  affert  her  hereditary  right  by  the 
fword  :  which  dilpute  was  attended  with  various  fuccefs,  and 
ended  at  laft  in  a  compromife,  that  Stephen  mould  keep  the 

s   See  1  rd  Lyttelton's  life  of  Henry  II.      " popith  tnregem  Anglorumeleflus,  tsV."  (Cart. 
I.  467.  A.D.  1136.  Ric.  de  Haguftald-314.  Hearne 

h  "  Ego  Stcfhanus  Dei  gratia  afffiifu  chri  et     ad  Gail.  Neulr.  711.) 

crown, 


Ch.  3.  of    PERSONS.  201 

crown,  but  that  Henry  the  fon  of  Maud  mould  fucceed  him ; 
as  he  afterwards  accordingly  did. 

\ 

HENRY,  the  fecond  of  that  name,  was  (next  after  his  mo- 
ther Matilda)  the  undoubted  heir  of  William  the  conqueror; 
but  he  had  alfo  another  connexion  in  blood,  which  endeared  him 
ftill  farther  to  the  Englifh.  He  was  lineally  defcended  from  Ed- 
mund Ironfide,  the  laft  of  the  Saxon  race  of  hereditary  kings. 
For  Edward  the  outlaw,  the  fon  of  Edmund  Ironfide,  had  (be- 
fides  Edgar  Atheling,  who  died  without  iflue)  a  daughter  Mar- 
garet, who  was  married  to  Malcolm  king  of  Scotland ;  and  in 
her  the  Saxon  hereditary  right  refided.  By  Malcolm  me  had  fe- 
veral  children,  and  among  the  reft  Matilda  the  wife  of  Henry  I, 
who  by  him  had  the  emprefs  Maud,  the  mother  of  Henry  II. 
Upon  which  account  the  Saxon  line  is  in  our  hiflories  frequently 
faid  to  have  been  reftored  in  his  perfon  :  though  in  reality  that 
right  fubfifted  in  the  Jons  of  Malcolm  by  queen  Margaret ;  king 
Henry's  beft  title  being  as  heir  to  the  conqueror. 

FROM  Henry  II  the  crown  defcended  to  his  eldeft  fon  Ri- 
chard I,  who  dying  childlefs,  the  right  vefted  in  his  nephew 
Arthur,  the  fon  of  Geoffrey  his  next  brother:  but  John,  the 
youngeft  fon  of  king  Henry,  feifed  the  throne ;  claiming,  as  ap- 
pears from  his  charters,  the  crown  by  hereditary  right ' :  that  is 
to  fay,  he  was  next  of  kin  to  the  deceafed  king,  being  his  fur- 
viving  brother;  whereas  Arthur  was  removed  one  degree  farther, 
being  his  brother's  fon,  though  by  right  of  reprefentation  he  ftood 
in  the  place  of  his  father  Geoffrey.  And  however  flimfey  this 
title,  and  thofe  of  William  Rufus  and  Stephen  of  Blois,  may 
appear  at  this  diftance  to  us,  after  the  law  of  defcents  hath  now 
been  fettled  for  fo  many  centuries,  they  were  fufficient  to  puzzle 
the  understandings  of  our  brave,  but  unlettered,  anceftors.  Nor 
indeed  can  we  wonder  at  the  number  of  partizans,  who  efpoufed 
the  pretenfions  of  king  John  in  particular;  fince  even  in  the  reign 

1  "  Rcgni  Angliai  ;    quori  nobii  jure  compel  it  haereditario"     Spelm.  Hijt.  R.   "Jeb.  afuJ 
Wilkins.  354. 

Bb  of 


2O2  77je    RIGHTS  BOOK!. 

of  his  father,  king  Henry  II,  it  was  a  point  undetermined  •", 
whether,  even  in  common  inheritances,  the  child  of  an  elder 
brother  mould  fucceed  to  the  land  in  right  of  reprefentation,  or 
the  younger  furviving  brother  in  right  of  proximity  of  blood.  Nor 
is  it  to  this  day  decided  in  the  collateral  fucceflion  to  the  fiefs  of 
the  empire,  whether  the  order  of  the  flocks,  or  the  proximity  of 
degree  lhall  take  place '.  However,  on  the  death  of  Arthur  and 
his  lifter  Eleanor  without  iffue,  a  clear  and  indifputable  title  veiled 
in  Henry  III  the  fon  of  John  :  and  from  him  to  Richard  the  fe- 
cond,  a  fucceflion  of  fix  generations,  the  crown  defcended  in  the 
true  hereditary  line.  Under  one  of  which  race  of  princes  k  we  find 
it  declared  in  parliament,  "  that  the  law  of  the  crown  of  Eng- 
land is,  and  always  hath  been,  that  the  children  of  the  king 
" of  England,  whether  born  in  England,  or  elfewhere,  ought  to 
"  bear  the  inheritance  after  the  death  of  their  anceftors.  Which 
"  law,  our  fovereign  lord  the  king,  the  prelates,  earls,  and  ba- 
"  rons,  and  other  great  men,  together  with  all  the  commons,  in 
"  parliament  affembled,  do  approve  and  affirm  for  ever." 

UPON  Richard  the  fecond's  refignation  of  the  crown,  he 
having  no  children,  the  right  refulted  to  the  iffue  of  his  grand- 
father Edward  III.  That  king  had  many  children,  befides  his 
eldeft,  Edward  the  black  prince  of  Wales,  the  father  of  Ri- 
chard II  :  but  to  avoid  confufion  I  mall  only  mention  three ; 
William  his  fecond  fon,  who  died  without  iffue ;  Lionel  duke  of 
Clarence,  his  third  fon ;  and  John  of  Gant  duke  of  Lancafler, 
his  fourth.  By  the  rules  of  fucceffion  therefore  the  pofterity  of 
Lionel  duke  of  Clarence  were  entitled  to  the  throne,  upon  the 
refignation  of  king  Richard ;  and  had  accordingly  been  declared 
by  the  king,  many  years  before,  the  prefumptive  heirs  of  the 
crown ;  which  declaration  was  alfo  confirmed  in  parliament '. 
But  Henry  duke  of  Lancafler,  the  fon  of  John  of  Gant,  having 
then  a  large  army  in  the  kingdom,  the  pretence  of  railing  which 
was  to  recover  his  patrimony  from  the  king,  and  to  redrefs  the 

>  Glanv.  /.  7.  r.  3.  k  Stat.  25  Edw.  III.  ft.  2. 

*  Mod.  Un.  Hift.  xxx.  512.  '  Sandford's  geneal.  hift.  246. 

grievances 


Ch.  3.  of    PERSONS.  203 

grievances  of  the  fubje<ft,  it  was  impoflible  for  any  other  title  to 
be  afferted  with  any  fafety ;  and  he  became  king  under  the  title 
of  Henry  IV.  But,  as  fir  Matthew  Hale  remarks  m,  though  the 
people  unjuftly  affifled  Henry  IV  in  his  ufurpation  of  the  crown, 
yet  he  was  not  admitted  thereto,  until  he  had  declared  that  he 
claimed,  not  as  a  conqueror,  (which  he  very  much  inclined  to 
do  n )  but  as  a  fucceflbr,  defcended  by  right  line  of  the  blood  royal ; 
as  appears  from  the  rolls  of  parliament  in  thofe  times.  And  in 
order  to  this  he  fet  up  a  mew  of  two  titles  :  the  one  upon  the 
pretence  of  being  the  firft  of  the  blood  royal  in  the  intire  male 
line,  whereas  the  duke  of  Clarence  left  only  one  daughter  Philippa; 
from  which  female  branch,  by  a  marriage  with  Edmond  Mortimer 
earl  of  March,  the  houfe  of  York  defcended  :  the  other,  by  revi- 
ving an  exploded  rumour,  firfl  propagated  by  John  of  Cant,  that 
Edmond  earl  of  Lancafter  (to  whom  Henry's  mother  was  heirefs) 
was  in  reality  the  elder  brother  of  king  Edward  I ;  though  his 
parents,  on  account  of  his  perfonal  deformity,  had  impofed  him 
on  the  world  for  the  younger  :  and  therefore  Henry  would  be  in- 
titled  to  the  crown,  either  as  fuccefibr  to  Richard  II,  in  cafe  the 
intire  male  line  was  allowed  a  preference  to  the  female ;  or,  even 
prior  to  that  unfortunate  prince,  if  the  crown  could  defcend 
through  a  female,  while  an  intire  male  line  was  exifting. 

HOWEVER,  as  in  Edward  the  third's  time  we  find  the  par- 
liament approving  and  affirming  the  law  of  the  crown,  as  be- 
fore flated,  fo  in  the  reign  of  Henry  IV  they  actually  exerted 
their  right  of  new-fettling  the  fucceflion  to  the  crown.  And  this 
was  done  by  the  flatute  7  Hen.  IV.  c.  2.  whereby  it  is  enadled, 
"that  the  inheritance  of  the  crown  and  realms  of  England  and 

O 

"  France,  and  all  other  the  king's  dominions,  fliall  be  Jet  and  re- 
<l  main0  in  the  perfon  of  our  fovereign  lord  the  king,  and  in  the 
"heirs  of  his  body  iffuing;"  and  prince  Henry  is  declared  heir 
apparent  to  the  crown,  to  hold  to  him  and  the  heirs  of  his  body 

""  Hift.  C.  L.   c.  ;.  °  fait  ays  et  dai'Mrge. 

A  Seld.  tit.  hon.  i.  3. 

B  b  2  ifluing, 


204  The    RIGHTS  BOOK  I. 

ifluing,  with  remainder  to  lord  Thomas,  lord  John,  and  lord 
Humphry,  the  king's  fons,  and  the  heirs  of  their  bodies  refpec- 
tively.  Which  is  indeed  nothing  more  than  the  law  would  have 
done  before,  provided  Henry  the  fourth  had  been  a  rightful  king. 
It  however  ferves  to  mew  that  it  was  then  generally  underftood, 
that  the  king  and  parliament  had  a  right  to  new-model  and  re- 
gulate the  fucceflion  to  the  crown.  And  we  may  obferve,  with 
what  caution  and  delicacy  the  parliament  then  avoided  declaring 
any  fentiment  of  Henry's  original  title.  However  fir  Edward 
Coke  more  than  once  expreflly  declares  p,  that  at  the  time  of 
paffing  this  act  the  right  of  the  crown  was  in  the  defcent  from 
Philippa,  daughter  and  heir  of  Lionel  duke  of  Clarence. 

NEVERTHELESS  the  crown  defcended  regularly  from 
Henry  IV  to  his  fon  and  grandfon  Henry  V  and  VI ;  in  the  latter 
of  whofe  reigns  the  houfe  of  York  afferted  their  dormant  title  j 
and,  after  imbruing  the  kingdom  in  blood  and  confufion  for  feven 
years  together,  at  laft  eftablimed  it  in  the  perfon  of  Edward  IV. 
At  his  acceflion  to  the  throne,  after  a  breach  of  the  fucceffion 
that  continued  for  three  defcents,  and  above  threefcore  years,  the 
distinction  of  a  king  de  jure,  and  a  king  defafto  began  to  be  firfl 
taken  -,  in  order  to  indemnify  fuch  as  had  fubmitted  to  the  late 
eftablifhment,  and  to  provide  for  the  peace  of  the  kingdom  by 
confirming  all  honors  conferred,  and  all  acts  done,  by  thofe  who 
were  now  called  the  ufurpers,  not  tending  to  the  dimerifon  of  the 
rightful  heir.  In  ftatute  I  Edw.  IV.  c.  i.  the  three  Henrys  are 
filled,  "  late  kings  of  England  fucceflively  in  dede,  and  not  of 
"  rygnt-"  And,  in  all  the  charters  which  I  have  met  with  of  king 
Edward,  wherever  he  has  occafion  to  fpeak  of  any  of  the  line  of 
Lancafter,  he  calls  them,  "mtper  de  faflo,  et  non  de  jure,  reges 
"  Angliae" 

EDWARD  IV  left  two  fons  and  a  daughter ;  the  eldeft  of 
which  fons,  king  Edward  V,  enjoyed  the  regal  dignity  for  a  very 
(hort  time,  and  was  then  depofed  by  Richard  his  unnatural  uncle  j 

r  4  Inft.  37.  205. 

who 


Ch.  3.  of   PERSONS.  205 

who  immediately  ufurped  the  royal  dignity,  having  previoufly  in- 
finuated  to  the  populace  a  fufpicion  of  baftardy  in  the  children 
of  Edward  IV,  to  make  a  (hew  of  fome  hereditary  title  :  after 
which  he  is  generally  believed  to  have  murdered  his  two  nephews; 
upon  whofe  death  the  right  of  the  crown  devolved  to  their  fifter 
Elizabeth. 

THE  tyrannical  reign  of  king  Richard  III  gave  occafion  to 
Henry  earl  of  Richmond  to  afiert  his  title  to  the  crown.  A  title 
the  moft  remote  and  unaccountable  that  was  ever  fet  up,  and 
which  nothing  could  have  given  fuccefs  to,  but  the  univerfal  de- 
teftation  of  the  then  ufurper  Richard.  For,  betides  that  he  claimed 
under  a  defcent  from  John  of  Cant,  whofe  title  was  now  exploded, 
the  claim  (fuch  as  it  was)  was  through  John  earl  of  Somerfet,  a 
baftard  fon,  begotten  by  John  of  Gant  upon  Catherine  Swinford. 
It  is  true,  that,  by  an  act  of  parliament  20  Ric.  II,  this  fon  was, 
with  others,  legitimated  and  made  inheritable  to  all  lands,  offices, 
and  dignities,  as  if  he  had  been  born  in  wedlock  :  but  frill,  with 
an  exprefs  refervation  of  the  crown,  "  exc epta  dtgnitate  regali^J" 

NOTWITHSTANDING  all  this,  immediately  after  the  battle 
of  Bofworth  field,  he  aflumed  the  regal  dignity;  the  right  of  the 
crown  then  being,  as  fir  Edward  Coke  exprefTly  declares  *,  in 
Elizabeth,  eldefl  daughter  of  Edward  IV:  and  his  poflerlion  was 
eflablifhed  by  parliament,  held  the  firft  year  of  his  reign.  In  the 
aft  for  which  purpofe,  the  parliament  feems  to  have  copied  the 
caution  of  their  predeceflbrs  in  the  reign  of  Henry  IV ;  and  there- 
fore (as  lord  Bacon  the  hiflorian  of  this  reign  obferves)  carefully 
avoided  any  recognition  of  Henry  VIFs  right,  which  indeed  was 
none  at  all ;  and  the  king  would  not  have  it  by  way  of  new  law 
or  ordinance,  whereby  a  right  might  feem  to  be  created  and  con- 
ferred upon  him  ;  and  therefore  a  middle  way  was  rather  chofen, 
by  way  (as  the  noble  hiflorian  exprefles  it)  of  eft  abli foment,  and 
that  under  covert  and  indifferent  words,  "that  the  inheritance  of 
"  the  crown  fhould  reft,  remain^  and  abide  in  king  Henry  VII  and 

1  4lnft.  36.  r  Ibid,-!,-], 

"the 


206  17je    RIGHTS  BOOK!. 

"  the  heirs  of  his  body  :"  thereby  providing  for  the  future,  and 
at  the  fame  time  acknowleging  his  prefent  pofTeiiion  ;  but  not 
determining  either  way,  whether  that  poileilion  was  de  jure  or  de 
fatto  merely.  However  he  foon  after  married  Elizabeth  of  York, 
the  undoubted  heirefs  of  the  conqueror,  and  thereby  gained  (as 
fir  Edward  Coke s  declares)  by  much  his  beft  title  to  the  crown. 
Whereupon  the  acT:  made  in  his  favour  was  fo  much  difregarded, 
that  it  never  was  printed  in  our  ftatute  books. 

HENRY  the  eighth,  the  iffue  of  this  marriage,  fucceeded  to 
the  crown  by  clear  indifputable  hereditary  right,  and  tranfmitted 
it  to  his  three  children  in  fucceffive  order.  But  in  his  reign  we 
at  feveral  times  find  the  parliament  bufy  in  regulating  the  fuccef- 
fion  to  the  kingdom.  And,  firft,  by  ftatute  25  Hen. VIII.  c.  12. 
which  recites  the  mifchiefs,  which  have  and  may  enfue  by  dif- 
puted  titles,  becaufe  no  perfedt  and  fubftantial  provifion  hath  been 
made  by  law  concerning  the  fuccefllon;  and  then  enacts,  that 
the  crown  {hall  be  entailed  to  his  majefty,  and  the  fons  or  heirs 
males  of  his  body ;  and  in  default  of  fuch  fons  to  the  lady  Eliza- 
beth (who  is  declared  to  be  the  king's  eldeft  iiTue  female,  in  ex- 
clufion  of  the  lady  Mary,  on  account  of  her  fuppofed  illegiti- 
macy by  the  divorce  of  her  mother  queen  Catherine)  and  to  the 
lady  Elizabeth's  heirs  of  her  body ;  and  fo  on  from  ifTue  female 
to  ilTue  female,  and  the  heirs  of  their  bodies,  by  courfe  of  inhe- 
ritance according  to  their  ages,  as  the  crown  of  England  hath  been 
accujlomed  and  ought  to  go,  in  cafe  where  there  be  heirs  female  of 
the  fame  :  arid  in  default  of  ifiue  female,  then  to  the  king's  right 
heirs  for  ever.  This  (ingle  flatute  is  an  ample  proof  of  all  the 
four  pofitions  we  at  firft  fet  out  with. 

BUT,  upon  the  king's  divorce  from  Ann  Boleyn,  this  ftatute 
was,  with  regard  to  the  fettlement  of  the  crown,  repealed  by  fta- 
tute 28  Hen.  VIII.  c.  7.  wherein  the  lady  Elizabeth  is  alfo,  as  well 
as  the  lady  Mary,  baftardized,  and  the  crown  fettled  on  the  king's 
children  by  queen  Jane  Seymour,  and  his  future  wives ;  and,  in 

3  4lnft.  37. 

defeft 


Ch.  3.  ^PERSONS.  207 

defect  of  fuch  children,  then  with  this  remarkable  remainder,  to 
fuch  perfons  as  the  king  by  letters  patent,  or  laft  will  and  tefta- 
ment,  mould  limit  and  appoint  the  fame.  A  vaft  power ;  but, 
notwithftanding,  as  it  was  regularly  vefted  in  him  by  the  fupreme 
legislative  authority,  it  was  therefore  indifputably  valid.  But  this 
power  was  never  carried  into  execution;  for  by  ftatute35Hen.VIII. 
c.i.  the  king's  two  daughters  are  legitimated  again,  and  the 
crown  is  limited  to  prince  Edward  by  name,  after  that  to  the 
lady  Mary,  and  then  to  the  lady  Elizabeth,  and  the  heirs  of  their 
refpective  bodies  j  which  fucceffion  took  effect  accordingly,  being 
indeed  no  other  than  the  ufual  courfe  of  the  law,  with  regard  to 
the  defcent  of  the  crown. 

BUT  left  there  mould  remain  any  doubt  in  the  minds  of  the 
people,  through  this  jumble  of  acts  for  limiting  the  fucceffion, 
by  ftatute  i  Mar.  p.  2.  c.  i.  queen- Mary's  hereditary  right  to  the 
throne  is  acknowleged  and  recognized  in  thefe  words  :  "  the 
"crown  of  thefe  realms  is  moft  lawfully,  juftly,  and  rightly  def- 
M  cended  and  come  to  the  queen's  highnefs  that  now  is,  being  the 
"  very,  true,  and  undoubted  heir  and  inheritrix  thereof."  And 
again,  upon  the  queen's  marriage  with  Philip  of  Spain,  in  the 
ftatute  which  fettles  the  preliminaries  of  that  match',  the  here- 
ditary right  to  the  crown  is  thus  aflerted  and  declared  :  "  as 
"  touching  the  right  of  the  queen's  inheritance  in  the  realm  and 
"  dominions  of  England,  the  children,  whether  male  or  female,. 
"  {hall  fucceed  in  them,  according  to  the  known  laws,  ftatutes, 
"  and  cuftoms  of  the  fame."  Which  determination  of  the  par- 
liament, that  the  fucceffion  fiall  continue  in  the  ufual  courfe, 
feems  tacitly  to  imply  a  power  of  new-modelling  and  altering  it,L 
in  cafe  the  legiflature  had  thought  proper. 

ON  queen  Elizabeth's  acceffion,  her  right  is  recognized  in  ftill 
ftronger  terms  than  her  fitter's;  the  parliament  acknowleging u, 
"  that  the  queen's  highnefs  is,  and  in  very  deed  and  of  moft  mere 
"  right  ought  to  be,  by  the  laws  of  God,  and  the  laws  and  fta- 

1   i  Mar.  p.  2.  c.  2.  u  Stat.  i  Eliz.  c.  3. 

"  tutes 


208  The    RIGHTS  BOOK  I. 

"  tutes  of  this  realm,  our  moft  lawful  and  rightful  fovereign  liege 
"  lady  and  queen ;  and  that  her  highnefs  is  rightly,  lineally,  and 
"lawfully  defcended  and  come  of  the  blood  royal  of  this  realm 
"  of  England ;  in  and  to  whofe  princely  perfon,  and  to  the  heirs 
"  of  her  body  lawfully  to  be  begotten,  after  her,  the  imperial 
"crown  and  dignity  of  this  realm  doth  belong."  And  in  the 
fame  reign,  by  ftatute  13  Eliz.  c.  i.  we  find  the  right  of  parlia- 
ment to  direct  the  fucceifion  of  the  crown  afferted  in  the  moft, 
explicit  words.  "  If  any  perfon  mall  hold,  affirm,  or  maintain 
"  that  the  common  laws  of  this  realm,  not  altered  by  parliament, 
"  ought  not  to  direct  the  right  of  the  crown  of  England ;  or  that 
"  the  queen's  majefty,  with  and  by  the  authority  of  parliament, 
"  is  not  able  to  make  laws  and  ftatutes  of  fufficient  force  and  va- 
"  lidity,  to  limit  and  bind  the  crown  of  this  realm,  and  the  de- 
"  fcent,  limitation,  inheritance,  and  government  thereof;  -—  fuch 
"  perfon,  fo  holding,  affirming,  or  maintaining,  mall  during  the 
"  life  of  the  queen  be  guilty  of  high  treafon ;  and  after  her  de- 
"  ceafe  mall  be  guilty  of  a  mifdemefnor,  and  forfeit  his  goods  and 
"chattels." 

O  N  the  death  of  queen  Elizabeth,  without  iflue,  the  line  of 
Henry  VIII  became  extinct.  It  therefore  became  neceffary  to  re- 
cur to  the  other  iflue  of  Henry  VII,  by  Elizabeth  of  York  his 
queen  :  whofe  eldeft  daughter  Margaret  having  married  James 
IV  king  of  Scotland,  king  James  the  fixth  of  Scotland,  and  of 
England  the  firft,  was  the  lineal  defcendant  from  that  alliance. 
So  that  in  his  perfon,  as  clearly  as  in  Henry  VIII,  centered  all  the 
claims  of  different  competitors  from  the  conqueft  downwards,  he 
being  indifputably  the  lineal  heir  of  the  conqueror.  And,  what 
is  ftill  more  remarkable,  in  his  perfon  alfo  centered  the  right  of  the 
Saxon  monarchs,  which  had  been  fufpended  from  the  conqueft 
till  his  acceflion.  For,  as  was  formerly  obferved,  Margaret  the 
fifter  of  Edgar  Atheling,  the  daughter  of  Edward  the  outlaw, 
and  granddaughter  of  king  Edmund  Ironfide,  was  the  perfon  in 
whom  the  hereditary  right  of  the  Saxon  kings,  fuppofmg  it  not 
abolished  by  the  conqueft,  refided.  She  married  Malcolm  king 

of 


Ch.  3.  of    PERSONS.  209 

of  Scotland ;  and  Henry  II,  by  a  defcent  from  Matilda  their 
daughter,  is  generally  called  the  reftorer  of  the  Saxon  line.  But 
it  muft  be  remembered,  fhat  Malcolm  by  his  Saxon  queen  had 
fons  as  well  as  daughters  j  and  that  the  royal  family  of  Scotland 
from  that  time  downwards  were  the  offspring  of  Malcolm  and 
Margaret.  Of  this  royal  family  king  James  the  firft  was  the  di- 
redl  lineal  heir,  and  therefore  united  in  his  perfon  every  pomble 
claim  by  hereditary  right  to  the  Englifh  as  well  as  Scottifh  throne, 
being  the  heir  both  of  Egbert  and  William  the  conqueror. 

AND  it  is  no  wonder  that  a  prince  of  more  learning  than  wif- 
dom,  who  could  deduce  an  hereditary  title  for  more  than  eight 
hundred  years,  mould  eafily  be  taught  by  the  flatterers  of  the 
times  to  believe  there  was  fomething  divine  in  this  right,  and 
that  the  finger  of  providence  was  vifible  in  it's  prefervation. 
Whereas,  though  a  wife  inftitution,  it  was  clearly  a  human  in- 
ftitution; and  the  right  inherent  in  him  no  natural,  but  a  pofitive, 
right.  And  in  this  and  no  other  light  was  it  taken  by  the  Eng- 
lifh parliament;  who  by  ftatute  i  Jac.  I.  c.  i.  did  "recognize 
"  and  acknowlege,  that  immediately  upon  the  difTolution  and  de- 
*'  ceafe  of  Elizabeth  late  queen  of  England,  the  imperial  crown 
"  thereof  did  by  inherent  birthright,  and  lawful  and  undoubted 
"  fucceffion,  defcend  and  come  to  his  mofl  excellent  majefty,  as 
'<  being  lineally,  juftly,  and  lawfully,-  next  and  fole  heir  of  the 
««  blood  royal  of  this  realm."  Not  a  word  here  of  any  right  im- 
mediately derived  from  heaven  :  which,  if  it  exifted  any  where, 
muft  be  fought  for  among  the  aborigines  of  the  ifland,  the  an- 
tient  Britons  j  among  whofe, princes  indeed  fome  have  gone  to 
fearch  it  for  him  w. 

BUT,  wild  and  abfurd  as  the  doctrine  of  divine  right  mofl  un- 
doubtedly is,  it  is  flill  more  aflonifhing,  that  when  fo  many  hu- 

w  Elizabeth  of  York,  the  mother  of  queen  defcent  from  Gladys  only  fifter  to  Lewellin 

Margaret  of  Scotland,    was  heirefs  of  the  ap  Jorwerth  the  great,  had  the  true  right  to 

houfe  of  Mortimer.  And  Mr  Carte  obferves,  the  principality  of  Wales,  iii.  705. 
that  the  houfe  of  Mortimer,  ir.  virtue  of  it's 

C  c  man 


210  'The    RIGHTS  BOOK  I, 

man  hereditary  rights  had  centered  in  this  king,  his  fon  and  heir 
king  Charles  the  firft  fhould  be  told  by  thofe  infamous  judges, 
who  pronounced  his  unparalleled  fentence,  that  he  was  an  elective 
prince  ;  elected  by  his  people,  and  therefore  accountable  to  them, 
in  his  own  proper  perfon,  for  his  conduct.  The  confufion,  in- 
ftability,  and  madnefs,  which  followed  the  fatal  cataftrophe  of 
that  pious  and  unfortunate  prince,  will  be  a  ftanding  argument  in 
favour  of  hereditary  monarchy  to  all  future  ages ;  as  they  proved 
at  laft  to  the  then  deluded  people  :  who,  in  order  to  recover  that 
peace  and  happinefs  which  for  twenty  years  together  they  had 
loft,  in  a  folemn  parliamentary  convention  of  the  ftates  reftored 
the  right  heir  of  the  crown.  And  in  the  proclamation  for  that 
purpofe,  which  was  drawn  up  and  attended  by  both  houfes  x,  they 
declared,  "  that,  according  to  their  duty  and  allegiance,  they  did 
"  heartily,  joyfully,  and  unanimoufly  acknowlege  and  proclaim, 
"  that  immediately  upon  the  deceafe  of  our  late  fovereign  lord 
"  king  Charles,  the  imperial  crown  of  thefe  realms  did  by  inhe- 
"  rent  birthright  and  lawful  and  undoubted  fucceffion  defcend  and 
"  come  to  his  moft  excellent  majefty  Charles  the  fecond,  as  being 
"  lineally,  juftly,  and  lawfully,  next  heir  of  the  blood  royal  of  this 
"  realm  :  and  thereunto  they  moft  humbly  and  faithfully  did  fub- 
"  mit  and  oblige  themfelves,  their  heirs,  and  pofterity  for  ever." 

THUS  I  think  it  clearly  appears,  from  the  higheft  authority 
this  nat'ion  is  acquainted  with,  that  the  crown  of  England  hath 
been  ever  an  hereditary  crown  ;  though  fubjed:  to  limitations  by 
parliament.  The  remainder  of  this  chapter  will  coniift  princi- 
pally of  thofe  inftances,  wherein  the  parliament  has  afferted  or 
exercifed  this  right  of  altering  and  limiting  the  fucceffion  ;  a  right 
which,  we  have  feen,  was  before  exercifed  and  afferted  in  the 
rei<?ns  of  Henry  IV,  Henry  VII,  Henry  VIII,  queen  Mary,  and 
queen  Elizabeth. 

THE  firft  inftance,  in  point  of  time,  is  the  famous  bill  of  ex- 
clufion,  which  raifed  fuch  a  ferment  in  the  latter  end  of  the  reign 

*  Com.  Journ,  8  May  1660. 

of 


Ch.  3.  of    PERSONS.  211 

of  king  Charles  the  fecond.  It  is  well  known,  that  the  purport 
of  this  bill  was  to  have  fet  afide  the  king's  brother  and  prefump- 
tive  heir,  the  duke  of  York,  from  the  fucceffion,  on  the  fcore 
of  his  being  a  papift ;  that  it  paffed  the  houfe  of  commons,  but 
was  rejected  by  the  lords ;  the  king  having  alfo  declared  beforehand, 
that  he  never  would  be  brought  to  content  to  it.  And  from  this 
tranfaction  we  may  collect  two  things  :  i.  That  the  crown  was 
univerfally  acknowleged  to  be  hereditary;  and  the  inheritance  in- 
defeafible  unlefs  by  parliament :  elfe  it  had  been  needlefs  to  pre- 
fer fuch  a  bill.  2.  That  the  parliament  had  a  power  to  have  de- 
feated the  inheritance  :  elfe  fuch  a  bill  had  been  ineffectual.  The 
commons  acknowleged  the  hereditary  right  then  fubfifting ;  and 
the  lords  did  not  difpute  the  power,  but  merely  the  propriety,  of 
an  exclufion.  However,  as  the  bill  took  no  effect,  king  James  the 
fecond  fucceeded  to  the  throne  of  his  anceftors ;  and  might  have 
enjoyed  it  during  the  remainder  of  his  life,  but  for  his  own  in- 
fatuated conduct,  which  (with  other  concurring  circumftances) 
brought  on  the  revolution  in  1688. 

TH  E  true  ground  and  principle,  upon  which  that  memorable 
event  proceeded,  was  an  entirely  new  cafe  in  politics,  which  had 
never  before  happened  in  our  hiftory;  the  abdication  of  the  reign- 
ing monarch,  and  the  vacancy  of  the  throne  thereupon.  It  was 
not  a  defeazance  of  the  right  of  fucceffion,  and  a  new  limitation 
of  the  crown,  by  the  king  and  both  houfes  of  parliament :  it  was 
the  act  of  the  nation  alone,  upon  a  conviction  that  there  was  no 
king  in  being.  For  in  a  full  affembly  of  the  lords  and  commons, 
met  in  convention  upon  the  fuppofition  of  this  vacancy,  both 
houfes y  came  to  this  refolution  j  "that  king  James  the  fecond, 
"  having  endeavoured  to  fubvert  the  conftitution  of  the  kingdom, 
"  by  breaking  the  original  contract  between  king  and  people; 
'•and,  by  the  advice  of  jefuits  and  other  wicked  perfons,  having 
*'  violated  the  fundamental  laws;  and  having  withdrawn  himfelf 
"  out  of  this  kingdom;  has  abdicated  the  government,  and  that  the 
*'  throne  is  thereby  vacant."  Thus  ended  at  once,  by  this  fudden 

i  Com.  Journ.  7  Feb.  1688. 

C  c  2  and 


212  The    RIGHTS  BOOK!, 

and  unexpected  vacancy  of  the  throne,  the  old  line  of  fucceflion ; 
which  from  the  conqueft  had  lafted  above  fix  hundred  years,  and 
from  the  union  of  the  heptarchy  in  king  Egbert  almoft  nine  hun- 
dred. The  facts  themfelves  thus  appealed  to,  the  king's  endea- 
vours to  fubvert  the  conftitution  by  breaking  the  original  contract, 
his  violation  of  the  fundamental  laws,  and  his  withdrawing  him- 
felf  out  of  the  kingdom,  were  evident  and  notorious :  and  the 
confequences  drawn  from  thefe  facts  (namely,  that  they  amounted 
to  an  abdication  of  the  government ;  which  abdication  did  not 
affect  only  the  perfon  of  the  king  himfelf,  but  alfo  all  his  heirs, 
and  rendered  the  throne  abfolutely  and  completely  vacant)  it 
belonged  to  our  anceftors  to  determine.  For,  whenever  a  quef- 
tion  arifes  between  the  fociety  at  large  and  any  magiftrate  vefted 
with  powers  originally  delegated  by  that  fociety,  it  muft  be 
decided  by  the  voice  of  the  fociety  itfelf :  there  is  not  upon 
earth  any  other  tribunal  to  refort  to.  And  that  thefe  confequen- 
ces were  fairly  deduced  from  thefe  facts,  our  anceftors  have  fo- 
lemnly  determined,  in  a  full  parliamentary  convention  repre- 
fenting  the  whole  fociety.  The  reafons  upon  which  they  deci- 
ded may  be  found  at  large  in  the  parliamentary  proceedings  of 
the  times ;  and  may  be  matter  of  instructive  amufement  for  us 
to  contemplate,  as  a  fpeculative  point  of  hiftory.  But  care  muft 
be  taken  not  to  carry  this  enquiry  farther,  than  merely  for  inftruc- 
tion  or  amufement.  The  idea,  that  the  confciences  of  pofterity 
were  concerned  in  the  rectitude  of  their  ancestors'  decifions,  gave 
birth  to  thofe  dangerous  political  herefies,  which  fo  long  diftracted 
the  ftate,  but  at  length  are  all  happily  extinguifhed.  I  therefore 
rather  chufe  to  confider  this  great  political  meafure,  upon  the  fo- 
lid  footing  of  authority,  than  to  reafon  in  it's  favour  from  it's  juf- 
tice,  moderation,  and  expedience  :  becaufe  that  might  imply  a 
right  of  duTenting  or  revolving  from  it,  in  cafe  we  mould  think 
it  to  have  been  unjuftj,  oppreflive,  or  inexpedient.  Whereas,  our 
anceftors  having  moft  indifputably  a  competent  jurisdiction  to  de- 
cide this  great  and  important  queftion,  and  having  in  fact  deci- 
ded it,  it  is  now  become  our  duty  at  this  diftance  of  time  to  ac- 
quiefce  in  their  determination ;  being  born  under  that  eftablilh- 

ment 


Ch.  3.  of    PERSONS.  213 

ment  which  was  built  upon  this  foundation,  and  obliged  by  every 
tie,  religious  as  well  as  civil,  to  maintain  it. 

BUT,  while  we  reft  this  fundamental  tranfaction,  in  point  of 
authority,  upon  grounds  the  leaft  liable  to  cavil,  we  are  bound 
both  in  juftice  and  gratitude  to  add,  that  it  was  conducted  with 
a  temper  and  moderation  which  naturally  arofe  from  it's  equity ; 
that,  however  it  might  in  fome  refpects  go  beyond  the  letter  of 
our  antient  laws,  (the  reafon  of  which  will  more  fully  appear 
hereafter  z )  it  was  agreeable  to  the  fpirit  of  our  conftitution,  and 
the  rights  of  human  nature  j  and  that  though  in  other  points 
(owing  to  the  peculiar  circumftances  of  things  and  perfons)  it 
was  not  altogether  fo  perfect  as  might  have  been  wifhed,  yet  from 
thence  a  new  aera  commenced,  in  which  the  bounds  of  preroga- 
tive and  liberty  have  been  better  denned,  the  principles  of  govern- 
ment more  thoroughly  examined  and  underftood,  and  the  rights 
of  the  fubje£t  more  explicitly  guarded  by  legal  provifions,  than 
in  any  other  period  of  the  Englifti  hiftory.  In  particular,  it  is 
worthy  obfervation  that  the  convention,  in  this  their  judgment, 
avoided  with  great  wifdom  the  wild  extremes  into  which  the  vi- 
fionary  theories  of  fome  zealous  republicans  would  have  led  them. 
They  held  that  this  mifconduct  of  king  James  amounted  to  an 
endeavour  to  fubvert  the  conftitution,  and  not  to  an  actual  fubver- 
fion,  or  total  diflblution  of  the  government,  according  to  the 
principles  of  Mr  Locke  a :  which  would  have  reduced  the  fociety 
almoft  to  a  ftate  of  nature ;  would  have  levelled  all  distinctions 
of  honour,  rank,  offices,  and  property ;  would  have  annihilated 
the  fovereign  power,  and  in  confequence  have  repealed  all  pofi- 
tive  laws;  and  would  have  left  the  people  at  liberty  to  have  erected 
a  new  fyftem  of  ftate  upon  a  new  foundation  of  polity.  They 
therefore  very  prudently  voted  it  to  amount  to  no  more  than  an 
abdication  of  the  government,  and  a  confequent  vacancy  of  the 
throne;  whereby  the  government  was  allowed  to  fubfift,  though 
the  executive  magiftrate  was  gone,  and  the  kingly  office  to  re- 
main, though  king  James  was  no  longer  kingb.  And  thus  the 

*  See  chap.  7.  >>  Law  of  forfeit.  1 18,  1 19. 

P.  2.  c.i9.  confdtution 


214  £    RIGHTS  BOOK!. 

conftitution  was  kept  intire ;  which  upon  every  found  principle 
of  government  mufl  otherwife  have  fallen  to  pieces,  had  fo  prin- 
cipal and  conftituent  a  part  as  the  royal  authority  been  abolifhed, 
or  even  fufpended. 

THIS  fingle  poftulatum,   the  vacancy  of  the  throne,   being 
once  eftabliihed,  the  reft  that  was  then  done  followed  almoft  of 
courfe.    For,  if  the  throne  be  at  any  time  vacant  (which  may 
happen  by  other  means  befides  that  of  abdication ;   as  if  all  the 
blood  royal  mould  fail,  without  any  fucceflbr  appointed  by  parlia- 
ment;) if,  I  fay,  a  vacancy  by  any  means  whatfoever  mould  hap- 
pen, the  right  of  difpofing  of  this  vacancy  feems  naturally  to  re- 
fult  to  the  lords  and  commons,  the  truftees  and  reprefentatives  of 
the  nation.    For  there  are  no  other  hands  in  which  it  can  fo  pro- 
perly be  intruded ;  and  there  is  a  neceflity  of  it's  being  intruded 
fomewhere,  elfe  the  whole  frame  of  government  muft  be  diflbl- 
ved  and  perifh.    The  lords  and  commons  having  therefore  deter- 
mined this  main  fundamental  article,  that  there  was  a  vacancy  of 
the  throne,  they  proceeded  to  fill  up  that  vacancy  in  fuch  manner 
as  they  judged  the  moft  proper.    And  this  was  done  by  their  de- 
claration of  12  February  1688  %  in  the  following  manner  :   "  that 
""William  and  Mary,  prince  and  princefs  of  Orange,  be,  and  be 
«'  declared  king  and  queen,   to  hold  the  crown  and  royal  dignity 
"  during  their  lives,  and  the  life  of  the  furvivor  of  them ;    and 
"  that  the  fole  and  full  exercife  of  the  regal  power  be  only  in, 
"  and  executed  by,   the  faid  prince  of  Orange,  in  the  names  of 
"  the  faid  prince  and  princefs,  during  their  joint  lives  ;  and  after 
"  their  deceafes  the  faid  crown  and  royal  dignity  to  be  to  the  heirs 
"  of  the  body  of  the  faid  princefs ;  and  for  default  of  fuch  iffue 
"  to  the  princefs  Anne  of  Denmark  and  the  heirs  of  her  body; 
""  and  for  default  of  fuch  iflue  to  the  heirs  of  the  body  of  the  faid 
"prince  of  Orange." 

PERHAPS,  upon  the  principles  before  eftablifhed,  the  conven- 
tion might  (if  they  pleafed)  have  veiled  the  regal  dignity  in  a  fa- 

c  Com.  Journ.   12  Feb.  1688 

mily 


Ch.  3.  of    PERSON  s.  215 

mily  intirdy  new,  and  ftrangers  to  the  royal  blood  :  but  they  were 
too  well  acquainted  with  the  benefits  of  hereditary  fucceflion,  and 
the  influence  which  it  has  by  cuftom  over  the  minds  of  the  people, 
to  depart  any  farther  from  the  antient  line  than  temporary  neceffity 
and  felf-prefervation  required.  They  therefore  fettled  the  crown, 
firft  on  king  William  and  queen  Mary,  king  James's  eldeft:  daugh- 
ter, for  their  joint  lives  ;  then  on  the  furvivor  of  them ;  and  then 
on  the  iflue  of  queen  Mary :  upon  failure  of  fuch  iflue,  it  was 
limited  to  the  princefs  Anne,  king  James's  fecond  daughter,  and 
her  iflue;  and  lailly,  on  failure  of  that,  to  the  iflue  of  king 
William,  who  was  the  grandfon  of  Charles  the  firft,  and  nephew 
as  well  as  fon  in  law  of  king  James  the  fecond,  being  the  fon  of 
Mary  his  eldeft  flfter.  This  fettlement  included  all  the  proteftant 
pofterity  of  king  Charles  I,  except  fuch  other  iflue  as  king  James 
might  at  any  time  have,  which  was  totally  omitted  through  fear 
of  a  popiih  fucceflion.  And  this  order  of  fucceflion  took  effect 
accordingly. 

THESE  three  princes  therefore,  king  William,  queen  Maryr 
and  queen  Anne,  did  not  take  the  crown  by  hereditary  right  or 
defcent,  but  by  way  of  donation  or  pur  chafe,  as  the  lawyers  call 
it ;  by  which  they  mean  any  method  of  acquiring  an  eftate  other- 
wife  than  by  defcent.  The  new  fettlement  did  net  merely  confift 
in  excluding  king  James,  and  the  perfon  pretended  to  be  prince 
of  Wales,  and  then  fufTering  the  crown  to  defcend  in  the  old  he- 
reditary chanel :  for  the  ufual  courfe  of  defcent  was  in  fome  in- 
ftances  broken  through ;  and  yet  the  convention  ftill  kept  it  in 
their  eye,  and  paid  a  great,  though  not  total,  regard  to  it.  Let 
us  fee  how  the  fucceflion  would  have  flood,  if  no  abdication  had 
happened,  and  king  James  had  left  no  other  iflue  than  his  two 
daughters  queen  Mary  and  queen  Anne.  It  would  have  flood 
thus  :  queen  Mary  and  her  iflue  ;  queen  Anne  and  her  iflue;  king 
William  and  his  iflue.  But  we  may  remember,  that  queen  Mary 
was  only  nominally  queen,  jointly  with  her  hufband  king  William, 
who  alone  had  the  regal  power;  and  king  William  was  perfonally 
preferred  to  queen  Anne,  though  his  iflue  was  poftponed  to  hers. 

Clearly 


2 1 6  The    RIGHTS  BOOK!. 

Clearly  therefore  thefe  princes  were  fucceflively  in  poflemon  of 
die  crown  by  a  title  different  from  the  ufual  courfe  of  defcent. 

I  T  was  towards  the  end  of  king  William's  reign,  when  all 
hopes  of  any  furviving  iflue  from  any  of  thefe  princes  died  with 
the  duke  of  Gloceiler,  that  the  king  and  parliament  thought  it 
neceflary  again  to  exert  their  power  of  limiting  and  appointing 
die  fucceflion,  in  order  to  prevent  another  vacancy  of  the  throne; 
which  muft  have  enfued  upon  their  deaths,  as  no  farther  provi- 
fion  was  made  at  the  revolution,  than  for  the  ifTue  of  king  Wil- 
liam, queen  Mary,  and  queen  Anne.  The  parliament  had  pre- 
vioufly  by  the  ftatute  of  i  W.  6c  M.  ft.  2.  c.  2.  enadted,  that  every 
perfon  who  mould  be  reconciled  to,  or  hold  communion  with, 
the  fee  of  Rome,  fliould  profefs  the  popifh  religion,  or  mould 
marry  a  papift,  ihould  be  excluded  and  for  ever  incapable  to  in- 
herit, poffefs,  or  enjoy,  the  crown ;  and  that  in  fuch  cafe  the 
people  fliould  be  abiolved  from  their  allegiance,  and  the  crown 
fliould  defcend  to  fuch  perfons,  being  proteftants,  as  would  have 
inherited  the  fame,  in  cafe  the  perfon  fo  reconciled,  holding  com- 
munion., profemng,  or  marrying,  were  naturally  dead.  To  aft 
therefore  confidently  with  themielves,  and  at  the  fame  time  pay 
as  much  regard  to  the  old  hereditary  line  as  their  former  refolu- 
tions  would  admit,  they  turned  their  eyes  on  the  princefs  Sophia, 
electrefs  and  duchefs  dowager  of  Hanover,  the  moit  accomplished 
princefs  of  her  agec.  For,  upon  the  impending  extinction  of  the 
proteftant  poftenty  of  Charles  the  firit,  the  old  law  of  regal  def- 
cent directed  them  to  recur  to  the  defcendants  of  James  the  firftj 
and  the  princefs  Sophia,  being  the  youngeft  daughter  of  Elizabeth 
queen  of  Bohemia,  who  was  the  daughter  of  James  the  firft, 
was  the  nearefh  of  the  antient  blood  royal,  who  was  not  incapa- 
citated by  prcferiing  the  popifh  religion.  On  her  therefore,  and 
die  heirs  of  her  body,  being  proteftants,  the  remainder  of  the 

r   Sandford,  in  his  genealogical  hiftory,  mia,    fays,    the  firft  was  reputed  the  moft 

publiflied  Jl.D.  1677,  fpeaking  (page  535)  learned,  the  fecond  the  greateft  artift,  and 

of  the  princefles  Elizabeth,    Louifa,    and  the  lad  one  of  the  mofl  accompliflied  ladies 

Sophia,  daughters  of  the  queen  of  Bohe-  in  Europe. 

crown, 


Ch.  3.  ^PERSONS.  217 

crown,  .expectant  on  the  death  of  king  William  and  queen  Anne 
without  iflue,  was  fettled  by  ftatute  12  &  ijW.  HI.  c.2.  And  at 
the  fame  time  it  was  enacted,  that  whofoever  mould  hereafter 
come  to  the  pofleffion  of  the  crown  mould  join  in  the  commu- 
nion of  the  church  of  England  as  by  law  eftablifhed. 

THIS  is  the  laft  limitation  of  the  crown  that  has  been  made 
by  parliament :  and  thefe  feveral  actual  limitations,  from  the  time 
of  Henry  IV  to  the  prefent,  do  clearly  prove  the  power  of  the 
king  and  parliament  to  new-model  or  alter  the  fucceflion.  And 
indeed  it  is  now  again  made  highly  penal  to  difpute  it :  for  by 
the  ftatute  6  Ann.  c.  7.  it  is  enacted,  that  if  any  perfon  mali- 
cioufly,  advifedly,  and  directly,  mall  maintain  by  writing  or 
printing,  that  the  kings  of  this  realm  with  the  authority  of  par- 
liament are  not  able  to  make  laws  to  bind  the  crown  and  the  def- 
cent  thereof,  he  mail  be  guilty  of  high  treafon  ;  or  if  he  maintains 
the  fame  by  only  preaching,  teaching,  or  advifed  fpeaking,  he  fhall 
incur  the  penalties  of  a  praemunire. 

TH  E  princefs  Sophia  dying  before  queen  Anne,  the  inherit- 
ance thus  limited  defcended  on  her  fon  and  heir  king  George  the 
firft ;  and,  having  on  the  death  of  the  queen  taken  effect  in  his 
perfon,  from  him  it  defcended  to  his  late  majefty  king  George  the 
fecond  ;  and  from  him  to  his  grandfon  and  heir,  our  prefent  gra- 
cious fovereign,  king  George  the  third. 

HENCE  it  is  eafy  to  collect,  that  the  title  to  the  crown  is  at 
prefent  hereditary,  though  not  quite  fo  abfolutely  hereditary  as 
formerly;  and  the  common  ftock  or  anceftor,  from  whom  the  def- 
cent  muft  be  derived,  is  alfo  different.  Formerly  the  common 
ftock  was  king  Egbert ;  then  William  the  conqueror ;  afterwards 
in  James  the  firft's  time  the  two  common  flocks  united,  and  fo 
continued  till  the  vacancy  of  the  throne  in  1688  :  now  it  is  the 
princefs  Sophia,  in  whom  the  inheritance  was  vefted  by  the  new 
king  and  parliament.  Formerly  the  defcent  was  abfolute,  and  the 
crown  went  to  the  next  heir  without  any  reftriction  :  but  now, 

D  d  upon 


218  The    RIGHTS  BOOK  1. 

upon  the  new  fettlement,  the  inheritance  is  conditional ;  being 
limited  to  fuch  heirs  only,  of  the  body  of  the  princefs  Sophia, 
as  are  proteflant  members  of  the  church  of  England,  and  are 
married  to  none  but  proteflants. 

AND  in  this  due  medium  confifls,  I  apprehend,  the  true  con- 
flitutional  notion  of  the  right  of  fucceffion  to  the  imperial  crown 
of  thefe  kingdoms.  The  extremes,  between  which  it  fleers,  are 
each  of  them  equally  deflruclive  of  thofe  ends  for  which  focieties 
were  formed  and  are  kept  on  foot.  Where  the  magiflrate,  upon 
every  fucceflion,  is  elecled  by  the  people,  and  may  by  the  exprefs 
proviiion  of  the  laws  be  depofed  (if  not  punimed)  by  his  fubjects, 
this  may  found  like  the  perfection  of  liberty,  and  look  well 
enough  when  delineated  on  paper ;  but  in  practice  will  be  ever 
productive  of  tumult,  contention,  and  anarchy.  And,  on  the 
other  hand,  divine  indefeafible  hereditary  right,  when  coupled 
with  the  doftrine  of  unlimited  paffive  obedience,  is  furely  of  all 
conflitutions  the  mofl  thoroughly  flavifli  and  dreadful.  But  when 
fuch  an  hereditary  right,  as  our  laws  have  created  and  vefled  in 
the  royal  flock,  is  clofely  interwoven  with  thofe  liberties,  which, 
we  have  feen  in  a  former  chapter,  are  equally  the  inheritance  of 
the  fubjedl ;  this  union  will  form  a  conflitution,  in  theory  the  moll 
beautiful  of  any,  in  practice  the  mofl  approved,  and,  I  trufl,  in 
duration  the  mofl  permanent.  It  was  the  duty  of  an  expounder 
of  our  laws  to  lay  this  conflitution  before  the  fludent  in  it's  true 
and  genuine  light  :  it  is  the  duty  of  every  good  Englifhman  to 
underfland,  to  revere,  to  defend  it. 


Ch. 4.  of  PERSONS.  219 


CHAPTER     THE     FOURTH. 

OP       THE       KING'S       ROYAL      FAMILY. 


THE  firft  and  moft  confiderable  branch  of  the  king's  royal 
family,  regarded  by  the  laws  of  England,  is  the  queen. 

TH  E  queen  of  England  is  either  queen  regent,  queen  confort, 
or  queen  dowager.  The  queen  regent,  regnant,  or  fovereign,  is 
{he  who  holds  the  crown  in  her  own  right ;  as  the  firfl  (and  per- 
haps the  fecond)  queen  Mary,  queen  Elizabeth,  and  queen  Anne ; 
and  fuch  a  one  has  the  fame  powers,  prerogatives,  rights,  digni- 
ties, and  duties,  as  if  flie  had  been  a  king.  This  was  obferved 
in  the  entrance  of  the  laft  chapter,  and  is  expreflly  declared  by 
ftatute  i  Mar.  I.  ft. 3.  c.  i.  But  the  queen  confort  is  the  wife  of 
the  reigning  king ;  and  fhe  by  virtue  of  her  marriage  is  partici- 
pant of  divers  prerogatives  above  other  women a. 

AND,  firft,  fhe  is  a  public  perfon,  exempt  and  diftincT:  from 
the  king ;  and  not,  like  other  married  women,  fo  clofely  con- 
nected as  to  have  loft  all  legal  or  feparate  exiftence  fo  long  as  the 
marriage  continues.  For  the  queen  is  of  ability  to  purchafe  lands, 
and  to  convey  them,  to  make  leafes,  to  grant  copyholds,  and  do 
other  adls  of  ownership,  without  the  concurrence  of  her  lord  ; 
which  no  other  married  woman  can  dob:  a  privilege  as  old  as  the 

»  Finch.  L.  86.  "  4  Rep.  23. 

D  d  2  Saxon 


22O  I7oe    RIGHTS  BOOK!. 

Saxon  aerac.  She  is  alfo  capable  of  taking  a  grant  from  the  king, 
which  no  other  wife  is  from  her  hufband ;  and  in  this  particular 
fhe  agrees  with  the  Augufta,  or  piljjima  regina  conjux  divi  impera- 
toris  of  the  Roman  laws  ;  who,  according  to  Juftinian d,  was 
equally  capable  of  making  a  grant  to,  and  receiving  one  from,  the 
emperor.  The  queen  of  England  hath  feparate  courts  and  officers 
diftincl:  from  the  king's,  not  only  in  matters  of  ceremony,  but  even 
of  law  ;  and  her  attorney  and  folicitor  general  are  intitled  to  a 
place  within  the  bar  of  his  majefty's  courts,  together  with  the  king's 
counfel6.  She  may  likewife  fue  and  be  fued  alone,  without  joining 
her  hufband.  She  may  alfo  have  a  feparate  property  in  goods  as 
well  as  lands,  and  has  a  right  to  difpofe  of  them  by  will.  la 
fhort,  me  is  in  all  legal  proceedings  looked  upon  as  a  feme  fole, 
and  not  as  a  feme  covert;  as  a  fmgle,  not  as  a  married  woman f. 
For  which  the  reaibn  given  by  fir  Edward  Coke  is  this  :  becaufe 
the  wifdom  of  the  common  law  would  not  have  the  king  (whofe 
continual  care  and  fludy  is  for  the  public,  and  circa  ardua  regnij 
to  be  troubled  and  difquieted  on  account  of  his  wife's  domeftic 
affairs ;  and  therefore  it  vefls  in  the  queen  a  power  of  tranfading 
her  own  concerns,  without  the  intervention  of  the  king,  as  if 
fhe  was  an  unmarried  woman.. 

THE  queen  hath  alfo  many  exemptions,  and  minute  preroga- 
tives. For  inflance  :  fhe  pays  no  toll2;  nor  is  me  liable  to  any 
amercement  in  any  court h.  But  in  general,  unlefs  where  the  law 
has  expreffly  declared  her  exempted,  fhe  is  upon  the  fame  footing 
with  other  fubjeclis  ;  being  to  all  intents  and  purpofes  the  king's 
fubjedl,  and  not  his  equal :  in  like  manner  as,  in  the  imperial 
law,  "  Augufta  legibus  foluta  non  eft  '." 

THE  queen  hath  alfo  fome  pecuniary  advantages,  which  form 
her  a  diftincl:  revenue  :  as,  in  the  firft  place,  fhe  is  intitled  to  an 

«  Seld.  Jan.  Angl.  1.42.  *  Co.  Litt.  133. 

d  Cod.  5.  16.26.  k  Finch.  L.  185. 

e  Seld.  tit.  hon.  i .  6.  7.  !  Ff.  \ .  3.  3  i . 
'  Finch.  L.  86.     Co.  Litt.  133. 

antient 


Ch. 4,  of   PERSONS.  221 

antient  perquifite  called  queen-gold  or  aurum  reginae ;  which  is  a 
royal  revenue,  belonging  to  every  queen  confort  during  her  mar- 
riage with  the  king,  and  due  from  every  perfon  who  hath  made 
a  voluntary  offering  or  fine  to  the  king,  amounting  to  ten  marks 
or  upwards,  for  and  in  confideration  of  any  privileges,  grants, 
licences,  pardons,  or  other  matter  of  royal  favour  conferred  upon 
him  by  the  king  :  and  it  is  due  in  the  proportion  of  one  tenth 
part  more,  over  and  above  the  intire  offering  or  fine  made  to  the 
king ;  and  becomes  an  actual  debt  of  record  to  the  queen's  ma- 
jefty  by  the  mere  recording  the  finek.  As,  if  an  hundred  marks 
of  filver  be  given  to  the  king  for  liberty  to  take  in  mortmain,  or 
to  have  a  fair,  market,  park,  chafe,  or  free  warren  :  there  the 
queen  is  intitled  to  ten  marks  in  filver,  or  (what  was  formerly  an 
equivalent  denomination )  to  one  mark  in  gold,  by  the  name  of 
queen-gold,  or  aurum  reginae1.  But  no  fuch  payment  is  due  for 
any  aids  or  fubfidies  granted  to  the  king  in  parliament  or  convo- 
cation ;  nor  for  fines  impofed  by  courts  on  offenders,  agamit  their 
will;  nor  for  voluntary  prefents  to  the  king,  without  any  confi- 
deration moving  from  him  to  the  fubject ;  nor  for  any  fale  or 
contract  whereby  the  prefent  revenues  or  poffefiions  of  the  crown- 
are  granted  away  or  diminished  m. 

THE  revenue  of  our  antient  queens,  before  and  foon  after  the 
conqueft,  feems  to  have  confifted  in  certain  refervations  or  rents 
out  of  the  demefne  lands  of  the  crown,  which  were  expreflly 
appropriated  to  her  majefty,  difHnct  from  the  king.  It  is  frequent 
in  domefday-book,  after  fpecifying  the  rent  due  to  the  crown,  to 
add  likewife  the  quantity  of  gold  or  other  renders  referved  to  the 
queen".  Thefe  were  frequently  appropriated  to  particular  purpo- 
fes  ;  to  buy  wool  for  her.  majefty's  ufe°,  to  purchafe  oyl  for  her 

k  Pryn.  Aur.  Reg.  2.  fitetud.  ut  praepof-tus  manerii  venievte  ehmina 

12  Rep.  21.     4lnft.  35^*  Jua  (reg'f">J  in   maner.   praejenlaret  li  x-viii 

01  Ibid.  Pryn.  6.  Madox.  hift.  excii.  242.  eras  denar.   ut   ej/et  ipfa  laeto  aaiiao.     Pryn. 

n  Bcdefardfcire.   Maner.   Le/ione  redd,    per  Append,  to  Aur.  t.eg.  2,  3. 

annum  xxii  lib.  &<:  :  ad  opus  reginae  it  uncias  °  catifa  coadunandi  lanam  reginat.  Domefd. 

auri,  — —  Herefordjcire.     In  Lene,  &c,  con-  ibid. 

lamps p, 


222  tte    RIGHTS  BOOK!. 

lamps'",  or  to  furnim  her  attire  from  head  to  footq,  which  was 
frequently  very  coftly,  as  one  fingle  robe  in  the  fifth  year  of 
Henry  II  flood  the  city  of  London  in  upwards  of  fourfcore 
pounds '.  A  practice  fomewhat  limilar  to  that  of  the  eailern 
countries,  where  whole  cities  and  provinces  were  fpecifically  af- 
figned  to  purchafe  particular  parts  of  the  queen's  apparel s.  And, 
for  a  farther  addition  to  her  income,  this  duty  of  queen-gold  is 
fuppofed  to  have  been  originally  granted ;  thofe  matters  of  grace 
and  favour,  out  of  which  it  arofe,  being  frequently  obtained 
from  the  crown  by  the  powerful  interceffion  of  the  queen.  There 
are  traces  of  it's  payment,  though  obfcure  ones,  in  the  book  of 
domefday  and  in  the  great  pipe-roll  of  Henry  the  firft'.  In  the 
reign  of  Henry  the  fecond  the  manner  of  collecting  it  appears  to 
have  been  well  underftood,  and  it  forms  a  diftinct  head  in  the 
antient  dialogue  of  the  exchequer"  written  in  the  time  of  that 
prince,  and  ufually  attributed  to  Gervafe- of  Tilbury.  From  that 
time  downwards  it  was  regularly  claimed  and  enjoyed  by  all  the 
queen  conforts  of  England  till  the  death  of  Henry  VIII ;  though 
after  the  acceffion  of  the  Tudor  family  the  collecting  of  it  feems 
to  have  been  much  neglected  :  and,  there  being  no  queen  confort 
afterwards  till  the  acceffion  of  James  I,  a  period  of  near  fixty 
years,  it's  very  nature  and  quantity  became  then  a  matter  of 
doubt :  and,  being  referred  by  the  king  to  the  then  chief  juflices 
and  chief  baron,  their  report  of  it  was  fo  very  unfavorable",  that 
queen  Anne  (though  fhe  claimed  it)  yet  never  thought  proper  to 
exact  it.  In  1635,  n  Car.  I,  a  time  fertile  of  expedients  for 
raifing  money  upon  dormant  precedents  in  our  old  records  (of 

P  Civitas  Lundon.    Pro  oho  ad  lampad.  re-  mode  ;    haec  ci-vitat  irtulieri  ndimiculum  prae- 

pinae.   Mag.  rot.  pip.  temp.  Hen.  II,  ibid.  beat,  baec  in  collum,  haec  in  critics,  &c.    Cic. 

1   Vi<ect»nes  Berkefdre,  x'vi  1.  fro  cappa  re-  in  Pemm.  lib.  3.  cap.  33. 

ginae.  (Mag.  rot.  pip.  19 — 22  Hen.  II.  ibid.)          '   SeeMadoxDifciftaf.efi/loIar.jj..  Pryn. 

Ci'vitas  Lund,  cordubanario  rcginae  xxs.  Mag.  Aur.Regin.  Append,  j. 
Rot.  2  Hen.  II.  Madox  hift.  exch.  419.  u  lib.  2.  c.  26. 

'  Pro  roba  ad  opia  regina.",  quatif  xx  1.   o'          w  Mr  Prynne,  with  fome  appearance  of 

•vis.  -viad.  Mag.  Rot.  ^  Hen.  II.  iliti.z^o.  reafon,  infinuates,  that  their  refearches  were 

*    Solere  aiunt  barbaros  reges  Perjarum  ac  very  fuperficial.    Aur,  Reg.  125. 
Syrorum  —  uxorilus  ci'vilates  attribuire,    hoc 

which 


Ch.  4.  of    PERSONS.  223 

which  fhip-money  was  a  fatal  inftance)  the  king,  at  the  petition 
of  his  queen  Henrietta  Maria,  iffued  out  his  writ  for  levying  it ; 
but  afterwards  purchafed  it  of  his  confort  at  the  price  of  ten 
thouiand  pounds ;  finding  it,  perhaps,  too  trifling  and  troublefome 
to  levy.  And  when  afterwards,  at  the  reftoration,  by  the  aboli- 
tion of  the  military  tenures,  and  the  fines  that  were  confequent 
upon  them,  the  little  that  legally  remained  of  this  revenue  was 
reduced  to  almoft  nothing  at  all,  in  vain  did  Mr  Prynne,  by  a 
treatife  which  does  honour  to  his  abilities  as  a  painful  and  judi- 
cious antiquarian,  endeavour  to  excite  queen  Catherine  to  revive 
this  antiquated  claim. 

ANOTHER  antient  perquifite  belonging  to  the  queen  confort, 
mentioned  by  all  our  old  writers  x,  and,  therefore  only,  worthy 
notice,  is  this :  that  on  the  taking  of  a  whale  on  the  coafts,  which 
is  a  royal  fifh,  it  mail  be  divided  between  the  king  and  queen ;  the 
head  only  being  the  king's  property,  and  the  tail  of  it  the  queen's. 
"  De  Jlurgione  obfer<uetur,  quod  rex  ilium  habeblt  integrum  :  de  ba- 
"  lena  vero  fufficit,  fi  rex  habeat  caput,  et  regma  caudam."  The 
reafon  of  this  whimfical  divifion,  as  affigned  by  our  antient  re- 
cords y,  was,  to  furnifh  the  queen's  wardrobe  with  whalebone. 

BUT  farther  :  though  the  queen  is  in  all  refpeds  a  fubjecT:,. 
yet,  in  point  of  the  fecurity  of  her  life  and  perfon,  me  is  put  on 
the  fame  footing  with  the  king.  It  is  equally  treafon  (by  the 
ftatute  25  Edw.  III.)  to  compafs  or  imagine  the  death  of  our  lady 
the  king's  companion,  as  of  the  king  himfelf :  and  to  violate,  or 
defile,  the  queen  confort,  amounts  to  the  fame  high  crime ;  as 
well  in  the  perfon  committing  the  facl,  as  in  the  queen  herfelf, 
if  confenting.  A  law  of  Henry  the  eighth  z  made  it  treafon  alfo 
for  any  woman,  who  was  not  a  virgin,  to  marry  the  king  without 
informing  him  thereof:  but  this  law  was  foon  after  repealed  ;  it 
trefpafling  too  ftrongly,  as  well  on  natural  juflice,  as  female  mo- 


x  Braflon.  7.3.  c.  3.    Britton.  c,  17.  Flet.          x  Pryn.  Aur.  Reg.  127. 
/.i.  c.  45^46.  ^  Scat.  3 3  Hen. VIII.  c.  21. 


de%. 


224  The    RIGHTS  BOOK!. 

defty.  If  however  the  queen  be  accufed  of  any  fpecies  of  trea- 
fon,  Hie  mall  (whether  confort  or  dowager)  be  tried  by  the  houfe 
of  peers,  as  queen  Ann  Boleyn  was  in  28  Hen.  VIII. 

TH  E  hufband  of  a  queen  regnant,  as  prince  George  of  Den- 
mark was  to  queen  Anne,  is  her  fubjedt ;  and  may  be  guilty  of 
high  treafon  againfl  her  :  but,  in  the  inftance  of  conjugal  fidelity, 
he  is  not  fubjecled  to  the  fame  penal  reftridtions.  For  which  the 
r-eafon  feems  to  be,  that,  if  a  queen  confort  is  unfaithful  to  the 
royal  bed,  this  may  debafe  or  baftardize  the  heirs  to  the  crown ; 
but  no  fuch  danger  can  be  confequent  on  the  infidelity  of  the 
hufband  to  a  queen  regnant. 

A  Q^U  E  E  N  dowager  is  the  widow  of  the  king,  and  as  fuch 
enjoys  mofl  of  the  privileges  belonging  to  her  as  queen  confort. 
But  it  is  not  high  treafon  to  confpire  her  death ;  or  to  violate  her 
chaftity,  for  the  fame  reafon  as  was  before  alleged,  becaufe  the 
fucceflion  to  the  crown  is  not  thereby  endangered.  Yet  ftill,  pro 
dignitate  regali,  no  man  can  marry  a  queen  dowager  without  fpe- 
cial  licence  from  the  king,  on  pain  of  forfeiting  his  lands  and 
goods.  This  fir  Edward  Coke"  tells  us  was  enadled  in  parliament 
in  6  Hen.  VI,  though  the  ftatute  be  not  in  print.  But  (he,  though 
an  alien  born,  mall  ftill  be  intitled  to  dower  after  the  king's  de- 
mife,  which  no  other  alien  is b.  A  queen  dowager,  when  mar- 
ried again  to  a  fubjecT:,  doth  not  lofe  her  regal  dignity,  as  peerefles 
dowager  do  their  peerage  when  they  marry  commoners.  For  Ka- 
therine,  queen  dowager  of  Henry  V,  though  fhe  married  a  pri- 
vate gentleman,  Owen  ap  Meredith  ap  Theodore,  commonly  called 
Owen  Tudor  ;  yet,  by  the  name  of  Katherine  queen  of  England, 
maintained  an  action  againfl:  the  bifhop  of  Carlifle.  And  fo  the 
queen  dowager  of  Navarre  marrying  with  Edmond,  brother  to 
king  Edward  the  firft,  maintained  an  adlion  of  dower  by  the 
name  of  queen  of  Navarre c. 


a  zlnft.  18.  See  Riley's  Plac.  Parl.672.  c  2  Inft.  50. 

•  Co.  Litt.  3 1 . 


THE 


Ch.  4.  of    PERSONS. 


225 


TH  E  prince  of  Wales,  or  heir  apparent  to  the  crown,  and  alfo 
his  royal  confort,  and  the  princefs  royal,  or  eldeft  daughter  of  the 
king,  are  likewife  peculiarly  regarded  by  the  laws.  For,  by  fta- 
tute  25  Edw.  Ill,  to  compafs  or  confpire  the  death  of  the  former, 
or  to  violate  the  chaftity  of  either  of  the  latter,  are  as  much  high 
treafon,  as  to  confpire  the  death  of  the  king,  or  violate  the  chaf- 
tity of  the  queen.  And  this  upon  the  fame  reafon,  as  was  before 
given ;  becaufe  the  prince  of  Wales  is  next  in  fucceffion  to  the 
crown,  and  to  violate  his  wife  might  taint  the  blood  royal  with 
baftardy :  and  the  eldeft  daughter  of  the  king  is  alfo  alone  inhe- 
ritable to  the  crown,  in  failure  of  iflue  male,  and  therefore  more 
refpeded  by  the  laws  than  any  of  her  younger  fifters  ;  infomuch 
that  upon  this,  united  with  other  (feodal)  principles,  while  our 
military  tenures  were  in  force,  the  king  might  levy  an  aid  for 
marrying  his  eldeft  daughter,  and  her  only.  The  heir  apparent 
to  the  crown  is  ufually  made  prince  of  Wales  and  earl  of  Chefler, 
by  fpecial  creation,  and  inveftiture ;  but,  being  the  king's  eldeft 
fon,  he  is  by  inheritance  duke  of  Cornwall,  without  any  new 


creation d 


TH  E  younger  fons  and  daughters  of  the  king,  who  are  not  in 
the  immediate  line  of  fucceffion,  are  little  farther  regarded  by 
the  laws,  than  to  give  them  precedence  before  all  peers  and  pub- 
lic officers  as  well  ecclefiaftical  as  temporal.  This  is  done  by  the 
ftatute  31  Hen. VIII.  c.  10.  which  enadls  that  no  perfon,  except 
the  king's  children,  fhall  prefume  to  fit  or  have  place  at  the  fide 
of  the  cloth  of  eftate  in  the  parliament  chamber;  and  that  cer- 
tain great  officers  therein  named  mall  have  precedence  above  all 
dukes,  except  only  fuch  as  mail  happen  to  be  the  king's  fon, 
brother,  uncle,  nephew  (which  fir  Edward  Coke e  explains  to 
fignify  grandfon  or  ncpos)  or  brother's  or  fifter's  fon.  But  under 
the  defcription  of  the  king's  children  his  grandfons  are  held  to  be 
included,  without  having  recourfe  to  fir  Edward  Coke's  inter- 

d  8Rep.  i.    Seld.  tit.  of  hon.  2.5.  e  4  Inft.  362. 

E  e  pretation 


226  7$<?    RIGHTS  BOOK  I. 

pretation  of  nephew :  and  therefore  when  his  late  majefty  created 
his  grandfon,  the  fecond  fon  of  Frederick  prince  of  Wales  de- 
ceafed,  duke  of  York,  and  referred  it  to  the  houfe  of  lords  to 
fettle  his  place  and  precedence,  they  certified f  that  he  ought  to 
have  place  next  to  the  duke  of  Cumberland,  the  king's  youngeft 
fon  ;  and  that  he  might  have  a  feat  on  the  left  hand  of  the  cloth 
of  eftate.  But  when,  on  the  acceffion  of  his  prefent  majefty, 
thofe  royal  perfonages  ceafed  to  take  place  as  the  children,  and 
ranked  only  as  the  brother  and  uncle,  of  the  king,  they  alfo  left 
their  feats  on  the  fide  of  the  cloth  of  eftate  :  fo  that  when  the 
duke  of  Glocefter,  his  majefty's  fecond  brother,  took  his  feat  in 
the  houfe  of  peers5,  he  was  placed  on  the  upper  end  of  the  earls' 
bench  (on  which  the  dukes  ufually  fit)  next  to  his  royal  high- 
nefs  the  duke  of  York.  And  in  1718,  upon  a  queftion  referred 
to  all  the  judges  by  king  George  I,  it  was  refolved  by  the  opi- 
nion of  ten  againft  the  other  two,  that  the  education  and  care  of 
all  the  king's  grandchildren  while  minors,  and  the  care  and  ap- 
probation of  their  marriages,  when  grown  up,  did  belong  of 
right  to  his  majefty  as  king  of  this  realm,  during  their  father's 
life  h.  And  this  may  fuffice  for  the  notice,  taken  by  law,  of  his 
majefty's  royal  family. 

f  Lord's  Journ.  24  Apr.  1760.  k  Fortefc.  A1.40I — 440. 

«  Hid.  10  Jan.  1765. 


Ch.  5.  of    PERSONS.  227 


CHAPTER     THE     FIFTH. 
OF   THE  COUNCILS  BELONGING  TO  THE  KING. 


THE  third  point  of  view,  in  which  we  are  to  confider  the 
king,  is  with  regard  to  his  councils.  For,  in  order  to  aflift 
him  in  the  difcharge  of  his  duties,  the  maintenance  of  his  dig- 
nity, and  the  exertion  of  his  prerogative,  the  law  hath  affigned 
him  a  diverfity  of  councils  to  advife  with. 

1.  TH  E  firft  of  thefe  is  the  high  court  of  parliament,  whereof 
we  have  already  treated  at  large. 

2.  SECONDLY,  the  peers  of  the  realm  are  by  their  birth  he- 
reditary counfellors  of  the  crown,  and  may  be  called  together  by 
the  king  to  impart  their  advice  in  all  matters  of  importance  to 
the  realm,  either  in  time  of  parliament,  or,  which  hath  been 
their  principal  ufe,  when  there  is  no  parliament  in  being a.    Ac- 
cordingly Brac"lonb,    fpeaking  of  the  nobility  of  his  time,  fays 
they  might  properly  be  called  "  confutes,  a  confulendo ;  reges  enim 
"  tales  Jibi  ajj'ociant  ad  confulendum."   And  in  our  law  books  c  it  is 
laid  down,  that  peers  are  created  for  two  reafons  ;    i .  Ad  confiden- 
dum,   2.  Ad  defendendum  regem:   for  which  reafons  the  law  gives 
them  certain  great  and  high  privileges ;    fuch  as  freedom  from 
arrefts,  &c,  even  when  no  parliament  is  fitting :  becaufe  the  law 
intends,  that  they  are  always  affifting  the  king  with  their  counfel 
for  the  commonwealth  j  or  keeping  the  realm  in  fafety  by  their 
prowefs  and  valour. 

*  Co.  Litt.  no.  c7Rep.34.    9  Rep. 49.    izRep.96. 

b  /.  i.  c.  8. 

E  e  2  INSTANCES 


228  The    RIGHTS  BOOK  I. 

• 

INSTANCES  of  conventions  of  the  peers,  to  advife  the  king, 
have  been  in  former  times  very  frequent ;  though  now  fallen  into 
difufe,  by  reafon  of  the  more  regular  meetings  of  parliament. 
Sir  Edward  Coked  gives  us  an  extract  of  a  record,  5  Hen. IV, 
concerning  an  exchange  of  lands  between  the  king  and  the  earl 
of  Northumberland,  wherein  the  value  of  each  was  agreed  to  be 
fettled  by  advice  of  parliament  (if  any  fhould  be  called  before  the 
feaft  of  St  Lucia)  or  otherwife  by  advice  of  the  grand  council  (of 
peers)  which  the  king  promifes  to  aflemble  before  the  faid  feaft, 
in  cafe  no  parliament  fhall  be  called.  Many  other  instances  of 
this  kind  of  meeting  are  to  be  found  under  our  antient  kings  : 
though  the  formal  method  of  convoking  them  had  been  fo  long 
left  off,  that  when  king  Charles  I  in  1640  iffued  out  writs  under 
the  great  feal  to  call  a  great  council  of  all  the  peers  of  England 
to  meet  and  attend  his  majefty  at  York,  previous  to  the  meeting 
of  the  long  parliament,  the  earl  of  Clarendon6  mentions  it  as  a 
new  invention,  not  before  heard  of;  that  is,  as  he  explains  him- 
felf,  fo  old,  that  it  had  not  been  practiced  in  fome  hundreds  of 
years.  But,  though  there  had  not  fo  long  before  been  an  inftance, 
nor  has  there  been  any  fince,  of  affembling  them  in  fo  folemn  a 
manner,  yet,  in  cafes  of  emergency,  our  princes  have  at  feveral 
times  thought  proper  to  call  for  and  confult  as  many  of  the  no- 
bility as  could  eafily  be  got  together  :  as  was  particularly  the  cafe 
with  king  James  the  fecond,  after  the  landing  of  the  prince  of 
Orange;  and  with  the  prince  of  Orange  himfelf,  before  he  called 
that  convention  parliament,  which  afterwards  called  him  to  the 
throne. 

BESIDES  this  general  meeting,  it  is  ufually  looked  upon  to 
be  the  right  of  each  particular  peer  of  the  realm,  to  demand  an 
audience  of  the  king,  and  to  lay  before  him,  with  decency  and 
refpecl,  fuch  matters  as  he  mail  judge  of  importance  to  the  pub- 
lic weal.  And  therefore,  in  the  reign  of  Edward  II,  it  was  made 
an  article  of  impeachment  in  parliament  againil  the  two  Hugh 

*  I  Inft.  no.  '  Hift.  b.  2. 

Spencers, 


Ch.  5.  of    PERSONS.  229 

Spencers,  father  and  fon,  for  which  they  were  banimed  the  king- 
dom, "  that  they  by  their  evil  covin  would  not  fuffer  the  great  men 
"  of  the  realm,  the  king's  good  counfellors,  to  fpeak  with  the 
"  king,  or  to  come  near  him ;  but  only  in  the  prefence  and  hear- 
"  ing  of  the  faid  Hugh  the  father  and  Hugh  the  fon,  or  one  of 
"  them,  and  at  their  will,  and  according  to  fuch  things  as  plea- 
«  fed  them  V 

3.  A  THIRD  council  belonging  to  the  king,  are,  according  to 
fir  Edward  Cokeg,  his  judges  of  the  courts  of  law,  for  law  mat- 
ters.     And  this  appears  frequently  in  our  ftatutes,  particularly 
14  Edw.  III.  c.  5.  and  in  other  books  of  law.      So  that  when  the 
king's  council  is  mentioned  generally,  it  muft  be  defined,  parti- 
cularized, and  underftood,  Jecundum  fubjeStam  materiam;  and,  if 
the  fubjecl:  be  of  a  legal  nature,  then  by  the  king's  council  is 
underftood  his  council  for  matters  of  law;  namely,  his  judges. 
Therefore  when  by  ftatute  16  Rio.  II.  c.  5.  it  was  made  a  high 
offence  to  import  into  this  kingdom  any  papal  bulles,  or  other 
procefTes   from   Rome ;    and  it   was  enacted,    that  the  offenders 
fhould  be  attached  by  their  bodies,  and  brought  before  the  kin<* 
and  his  council  to  anf.wer.for  fuch  offence;  here,   by  the  expref- 
fion  of  king's  council,  were  underftood  the  king's  judges  of  his 
courts  of  juftice,   the  fubjecl:  matter  being  legal:   this  being  the 
general  way  of  interpreting  the  word,  council^. 

4.  BUT   the  principal  council  belonging  to  the  king  is  his 
privy  council,  which  is  generally  called,  by  way  of  eminence, 
the  council.  And  this,  according  to  fir  Edward  Coke's  defcription 
of  it ',  is  a  noble,  honorable,  and  reverend  affembly,  of  the  king 
and  fuch  as  he  wills  to  be  of  his  privy  council,  in  the  king's  court 
or  palace.   The  king's  will  is  the  ible  conftituent  of  a  privy  coun- 
fellor  ;   and  this  alfo  regulates  their  number,  which  of  antient 
time  was  twelve  or  thereabouts.      Afterwards  it  increafed  to  fo 
large  a  number,  that  it  was  found  inconvenient  for  fecrely  and 

f  4  Inft.  53.  h  3  Inft.  125. 

t   i  Inft.  1 10.  '4  In!t.  53. 

difpatch ; 


230  I7je    RIGHTS  BOOK!. 

difpatch ;  and  therefore  king  Charles  the  fecond  in  1679  limited 
it  to  thirty :  whereof  fifteen  were  to  be  the  principal  officers  of 
ftate,  and  thofe  to  be  counfellors,  virfute  qfficii;  and  the  other 
fifteen  were  compofed  of  ten  lords  and  five  commoners  of  the 
king's  chooiingk.  But  fince  that  time  the  number  has  been  much 
augmented,  and  now  continues  indefinite.  At  the  fame  time  alfo, 
the  antient  office  of  lord  prefident  of  the  council  was  revived  in 
the  perfon  of  Anthony  earl  of  Shaftsbury ;  an  officer,  that  by  the 
ftatute  of  31  Hen. VIII.  c.  10.  has  precedence  next  after  the  lord 
chancellor  and  lord  treafurer. 

PRIVY  counfellors  are  made  by  the  king's  nomination,  without 
either  patent  or  grant ;  and,  on  taking  the  neceflary  oaths,  they 
become  immediately  privy  counfellors  during  the  life  of  the  king 
that  choofes  them,  but  fubjecl:  to  removal  at  his  difcretion. 

THE  duty  of  a  privy  counfellor  appears  from  the  oath  of  office1, 
which  confifts  of  feven  articles  :  i .  To  advife  the  king  according 
to  the  bed:  of  his  cunning  and  difcretion.  2.  To  advife  for  the 
king's  honour  and  good  of  the  public,  without  partiality  through 
affection,  love,  meed,  doubt,  or  dread.  3.  To  keep  the  king's 
counfel  fecret.  4.  To  avoid  corruption.  5.  To  help  and  ftrengthen 
the  execution  of  what  mall  be  there  refolved.  6.  To  withftand 
all  perfons  who  would  attempt  the  contrary.  And,  laftly,  in  ge- 
neral, 7.  To  obferve,  keep,  and  do  all  that  a  good  and  true 
counfellor  ought  to  do  to  his  fovereign  lord. 

TH  E  power  of  the  privy  council  is  to  enquire  into  all  offences 
againft  the  government,  and  to  commit  the  offenders  to  fafe  cuf- 
tody,  in  order  to  take  their  trial  in  fome  of  the  courts  of  law.  But 
their  jurifdidlion  herein  is  only  to  enquire,  and  not  to  punifh : 
and  the  perfons  committed  by  them  are  entitled  to  their  habeas 
corpus  by  ftatute  16  Car.  I.  c.  10.  as  much  as  if  committed  by  an 
ordinary  juftice  of  the  peace.  And,  by  the  fame  ftatute,  the  court 
of  ftarchamber,  and  the  court  of  requefts,  both  of  which  con- 

k  Temple's  Mem.  part.  3.  '  4  Inft.  54. 

fifted 


Ch.  5.  <?/*    PERSONS.  231 

fifted  of  privy  counfellors,  were  diffolved;  and  it  was  declared 
illegal  for  them  to  take  cognizance  of  any  matter  of  property, 
belonging  to  the  fubjecls  of  this  kingdom.   But,  in  plantation  or 
admiralty  caufes,  which  arife  out  of  the  jurifdiction  of  this  king- 
dom; and  in  matters  of  lunacy  and  idiocy  m,  being  a  fpecial  flower 
of  the  prerogative}   with  regard  to  thefe,  although  they  may  e- 
ventually  involve  queftions  of  extenfive  property,  the  privy  coun- 
cil continues  to  have  cognizance,  being  the  court  of  appeal  in 
fuch  caufes  :    or,   rather,   the  appeal  lies  to  the  king's  majefty 
himfelf  in  council.   Whenever  alfo  a  queftion  arifes  between  two 
provinces  in  America  or  elfewhere,  as  concerning  the  extent  of 
their  charters  and  the  like,  the  king  in  his  council  exercifes  0/7- 
gmrf/jurifdiction  therein,  upon  the  principles  of  feodal  fovereign- 
ty.    And  fo  likewife  when  any  perfon  claims  an  ifland  or  a  pro- 
vince, in  the  nature  of  a  feodal  principality,   by  grant  from  the 
king  or  his  ancestors,  the  determination  of  that  right  belongs  to 
his  majefty  in  council :   as  was  the  cafe  of  the  earl  of  Derby  with 
regard  to  the  ifle  of  Man  in  the  reign  of  queen  Elizabeth,  and 
of  the  earl  of  Cardigan  and  others,  as  reprefentatives  of  the  duke 
of  Montague,  with  relation  to  the  iiland  of  St  Vincent  in  1764. 
But  from  all  the  dominions  of  the  crown,  excepting  Great  Bri- 
tain and  Ireland,  an  appellate  jurifdiction  (in  the  laft  refort)  is 
vefted  in  the  fame  tribunal ;  which  ufually  exercifes  it's  judicial 
authority  in  a  committee  of  the  whole  privy  council,  who  hear 
the  allegations  and  proofs,  and  make  their  report  to  his  majefty 
in  council,  by  whom  the  judgment  is  finally  given^ 

A  s  to  the  qualifications  of  members  to  fit  at  this  board  :  any 
natural  born  fubject  of  England  is  capable  of  being  a  member  of 
the  privy  council ;  taking  the  proper  oaths  for  fecurity  of  the  go- 
vernment, and  the  teft  for  fecurity  of  the  church.  But,  in  order 
to  prevent  any  perfons  under  foreign  attachments  from  infinua- 
ting  themfelves  into  this  important  truft,  as  happened  in  the  reign, 
of  king  William  in  many  inftances,  it  is  enacted  by  the  act  of  fet- 
tlement n,  that  no  perfon  born  out  of  the  dominions  of  the  crown 

m  3p.  W".  ioS.  »  Stat.  iz&  13 Will.  III.  c.  z. 

of 


232  77oe    RIGHTS  BOOK!. 

of  England,  unlefs  born  of  Englifh  parents,  even  though  natura- 
lized by  parliament,  fhall  be  capable  of  being  of  the  privy  council. 

THE  privileges  of  privy  counfellors,  as  fuch,  confift  princi- 
pally in  the  fecurity  which  the  law  has  given  them  againft  at- 
tempts and  confpiracies  to  deftroy  their  lives.  For,  by  ftatute 
3  Hen. VII.  c.  14.  if  any  of  the  king's  fervants,  of  his  houmold, 
confpire  or  imagine  to  take  away  the  life  of  a  privy  counfellor,  it 
is  felony,  though  nothing  be  done  upon  it.  And  the  reafon  of 
making  this  ftatute,  fir  Edward  Coke0  tells  us,  was  becaufe  fuch 
fervants  have  greater  and  readier  means,  either  by  night  or  by 
day,  to  deftroy  fuch  as  be  of  great  authority,  and  near  about  the 
king:  and  fuch  a  confpiracy  was,  juft  before  this  parliament,  made 
by  fome  of  king  Henry  the  feventh's  houfhold  fervants,  and  great 
mifchief  was  like  to  have  enfued  thereupon.  This  extends  only 
to  the  king's  menial  fervants.  But  the  ftatute  9  Ann.  c.  16.  goes 
farther,  and  enacts,  that  any  perfons  that  mall  unlawfully  attempt 
to  kill,  or  fhall  unlawfully  afTault,  and  ftrike,  or  wound,  any  privy 
counfellor  in  the  execution  of  his  office,  fhall  be  felons,  and  fuffer 
death  as  fuch.  This  ftatute  was  made  upon  the  daring  attempt* 
of  the  fieur  Guifcard,  who  ftabbed  Mr  Harley,  afterwards  earl 
of  Oxford,  with  a  penknife,  when  under  examination  for  high 
crimes  in  a  committee  of  the  privy  council. 

THE  diffblution  of  the  privy  council  depends  upon  the  king's 
pleafure ;  and  he  may,  whenever  he  thinks  proper,  difcharge  any 
particular  member,  or  the  whole  of  it,  and  appoint  another.  By 
the  common  law  alfo  it  was  diflblved  ipfo  fatto  by  the  king's  de- 
mife;  as  deriving  all  it's  authority  from  him.  But  now,  to  pre- 
vent the  inconveniences  of  having  no  council  in  being  at  the  ac- 
ceffion  of  a  new  prince,  it  is  enacted  by  ftatute  6  Ann.  c.  7.  that 
the  privy  council  fhall  continue  for  fix  months  after  the  demife 
of  the  crown,  unlefs  fooner  determined  by  the  fuccefibr. 

0  3  Lift.  38. 


Ch.  6.  of   PERSONS.  233 


CHAPTER    THE     SIXTH. 
OF    THE    KING's    DUTIES. 


I  PROCEED  next  to  the  duties,  incumbent  on  the  king  by  our 
conftitution  j  in  coniideration  of  which  duties  his  dignity  and 
prerogative  are  eftablifhed  by  the  laws  of  the  land  :  it  being  a 
maxim  in  the  law,  that  protection  and  fubjection  are  reciprocal*.' 
And  thefe  reciprocal  duties  are  what,  I  apprehend,  were  meant 
by  the  convention  in  1688,  when  they  declared  that  king  James 
had  broken  the  original  contraft  between  king  and  people.  But 
however,  as  the  terms  of  that  original  contract  were  in  fome 
meafure  difputed,  being  alleged  to  exift  principally  in  theory,  and 
to  be  only  deducible  by  reaibn  and  the  rules  of  natural  law ;  in 
which  deduction  different  understandings  might  very  confiderably 
differ ;  it  was,  after  the  revolution,  judged  proper  to  declare  thefe 
duties  expreflly,  and  to  reduce  that  contract  to  a  plain  certainty. 
So  that,  whatever  doubts  might  be  formerly  raifed  by  weak  and 
fcrupulous  minds  about  the  exiftence  of  fuch  an  original  contract, 
they  muft  now  entirely  ceafe ;  efpecially  with  regard  to  every 
prince,  who  hath  reigned  fince  the  year  1688. 

THE  principal  duty  of  the  king  is,  to  govern  his  people  ac- 
cording to  law.  Nee  regibtis  injinita  aut  libera  poteftas,  was  the 
conftitution  of  our  German  anceftors  on  the  continent1".  And  this 
is  not  only  confonant  to  the  principles  of  nature,  of  liberty,  of 

a  7  Rep.  5.  b  Tac.  de  mor.  Germ,  c.  7. 

F  f  reafon, 


234  7fo    RIGHTS  BOOK!. 

reafon,  and  of  fociety,  but  has  always  been  efteemed  an  exprefs 
part  of  the  common  law  of  England,  even  when  prerogative  was 
at  the  higheft.  "The  king,"  faith  Bradton  c,  who  wrote  under 
Henry  III,  "  ought  not  to  be  fubjedt  to  man,  but  to  God,  and  to 
"  the  law  ;  for  the  law  maketh  the  king.  Let  the  king  therefore 
"  render  to  the  law,  what  the  law  has  inverted  in  him  with  re- 
"  gard  to  others  ;  dominion,  and  power  :  for  he  is  not  truly  king, 
"where  will  and  pleafure  rules,  and  not  the  law."  And  againdj 
"  the  king  alfo  hath  a  fuperior,  namely  God,  and  alfo  the  law, 
"  by  which  he  was  made  a  king."  Thus  Bradlon  :  and  Fortefcue 
alfo  %  having  firft  well  diftinguifhed  between  a  monarchy  abfo- 
lutely  and  defpotically  regal,  which  is  introduced  by  conqueft  and 
violence,  and  a  political  or  civil  monarchy,  which  arifes  from 
mutual  confent ;  (of  which  lafl  fpecies  he  afferts  the  government 
of  England  to  be)  immediately  lays  it  down  as  a  principle,  that 
"  the  king  of  England  muft  rule  his  people  according  to  the  de- 
"  crees  of  the  laws  thereof:  infomuch  that  he  is  bound  by  an 
"  oath  at  his  coronation  to  the  obfervance  and  keeping  of  his  own 
*'  laws."  But,  to  obviate  all  doubts  and  difficulties  concerning 
this  matter,  it  is  expreflly  declared  by  flatute  12  &  I3W.III.  c.2. 
that  "the  laws  of  England  are  the  birthright  of  the  people  there- 
*'  of  j  and  all  the  kings  and  queens  who  (hall  afcend  the  throne 
"  of  this  realm  ought  to  adminifter  the  government  of  the  fame 
"  according  to  the  faid  laws ;  and  all  their  officers  and  minifters 
"  ought  to  ferve  them  reflectively  according  to  the  fame  :  and 
"  therefore  all  the  laws  and  flatutes  of  this  realm,  for  fecuring 
"  the  eftablimed  religion,  and  the  rights  and  liberties  of  the  people 
"  thereof,  and  all  other  laws  and  ftatutes  of  the  fame  now  in  force, 
"  are  by  his  majefty,  by  and  with  the  advice  and  confent  of  the 
"  lords  fpiritual  and  temporal  and  commons,  and  by  authority  of 
"  the  fame,  ratified  and  confirmed  accordingly." 

A  N  D,.  as  to  the  terms  of  the  original  contract  between  king 
and  people,  thefe  I  apprehend  to  be  now  couched  in  the  corona- 

f  i.t.c.s.  «  c.-py  34. 

d  /.  2.  c.  16.  §.3. 

tion 


Ch.  6.  of    PERSONS.  235 

tion  oath,  which  by  the  ftatute  i  W.  6c  M.  ft.  i.  c.  6.  is  to  be 
adminiftred  to  every  king  and  queen,  who  fliall  fucceed  to  the 
imperial  crown  of  thefe  realms,  by  one  of  the  archbifhops  or 
bifhops  of  the  realm,  in  the  prefence  of  all  the  people  ;  who  on 
their  parts  do  reciprocally  take  the  oath  of  allegiance  to  the  crown. 
This  coronation  oath  is  conceived  in  the  following  terms : 

"  The  archbifoop  or  bifhop  Jh all  fay,  Will  you  folemnly  promife 
"  and  fwear  to  govern  the  people  of  this  kingdom  of  England, 
"  and  the  dominions  thereto  belonging,  according  to  the  ftatutes 
"  in  parliament  agreed  on,  and  the  laws  and  cuftoms  of  the  fame  ? 
"  — —  The  king  or  queen  foall  fay,  I  folemnly  promife  fo  to  do. 

"  Archbijlwp  or  bifoop.  Will  you  to  your  power  caufe  law  and 
"  juftice,  in  mercy,  to  be  executed  in  all  your  judgments  ?  — 
"  King  or  queen.  \  will. 

**  ArehMjhop  or  bifoop.  Will  you  to  the  utmofl  of  your  power 
"  maintain  the  laws  of  God,  the  true  profemon  of  the  gofpel, 
"  and  the  proteftant  reformed  religion  eftablimed  by  the  law  ? 
"  And  will  you  preferve  unto  the  bifhops  and  clergy  of  this  realm, 
"  and  to  the  churches  committed  to  their  charge,  all  fuch  rights 
"  and  privileges  as  by  law  do  or  fhall  appertain  unto  them,  or 
"  any  of  them  ?  —  King  or  queen.  All  this  I  promife  to  do. 

"  After  this  tie  king  or  queen,  laying  his  or  her  hand  upon  the 
"  holy  gofpeh,  foall  fay,  The  things  which  I  have  here  before  pro- 
"  mifed  I  will  perform  and  keep  :  fo  help  me  God.  And  then 
"Jkall  kifs  the  book." 

TH  i  s  is  the  form  of  the  coronation  oath,  as  it  is  now  pre- 
fcribed  by  our  laws  :  the  principal  articles  of  which  appear  to  be 
at  leaft  as  antient  as  the  mirror  of  jufticesf,  and  even  as  the  time 
of  Bradton  s :  but  the  wording  of  it  was  changed  at  the  revolu- 
tion, becaufe  (as  the  ftatute  alleges)  the  oath  itfelf  had  been 

f  cap.  I.  §.  2.  6  /.  3,  tr.l.  r.  9. 

F  f  2  framed 


236  The    RIGHTS  BOOK  I. 

framed  in  doubtful  words  and  expreflions,  with  relation  to  antient 
laws  and  constitutions  at  this  time  unknown*1.  However,  in  what 
form  foever  it  be  conceived,  this  is  mofr.  indifputably  a  funda- 
mental and  original  exprefs  contract ;  though  doubtlefs  the  duty 
of  protection  is  impliedly  as  much  incumbent  on  the  fovereign 
before  coronation  as  after  :  in  the  fame  manner  as  allegiance  to 
the  king  becomes  the  duty  of  the  fubject  immediately  on  the 
defcent  of  the  crown,  before  he  has  taken  the  oath  of  allegiance, 
or  whether  he  ever  takes  it  at  all.  This  reciprocal  duty  of  the 
fubject  will  be  conlidered  in  it's  proper  place.  At  prefent  we  are 
only  to  obferve,  that  in  the  king's  part  of  this  original  contract 
are  exprefled  all  the  duties  that  a  monarch  can  owe  to  his  people; 
viz.  to  govern  according  to  law  :  to  execute  judgment  in  mercy: 
and  to  maintain  the  eftablimed  religion.  And,  with  refpedt  to 
the  latter  of  thefe  three  branches,  we  may  farther  remark,  that 
by  the  aft  of  union,  5Ann.  c.8.  two  preceding  ftatutes  are  recited 
and  confirmed ;  the  one  of  the  parliament  of  Scotland,  the  other 
of  the  parliament  of  England  :  which  enact;  the  former,  that 
every  king  at  his  acceffion  (hall  take  and  fubfcribe  an  oath,  to 
preferve  the  proteftant  religion  and  prelbyterian  church  govern- 
ment in  Scotland  ;  the  latter,  that  at  his  coronation  he  mall  take 
and  fubfcribe  a  fimilar  oath,  to  preferve  the  fettlement  of  the 
church  of  England  within  England,  Ireland,  Wales,  and  Ber- 
wick, and  the  territories  thereunto  belonging. 

h  In  the  old  folio  abridgment  of  the  fla-  et  lex  drcltez  difpergez  ddapidez  cu  psriiux  de 

tutes,  printed  by  Lettou  and  Machlinia  in  la  eorane  a  foun  foiair  r.eafpeller  en  launcien 

the  reign  of  Edward  IV,  (penes  me)  there  is  ejtate,  et  quil  gardera  h  peas  de  ftynt  efglife  et 

preferved  a  copy  of  the  old  coronation  oath ;  al  ckrgie  et  al  people  e/e  ten  accords,  ct  quit  face 

which,  as   the  .book  is  extremely  fcarce,  I  faire  en  toutez  fez  jugementez  cwel  et  droit 

\\ill  here  tranfcribe.     Ceo  ejl  h  jerement  que  jujlice  cue  difc re cicn  et  mife ricordc ,  et  quilg raun- 

lc  ray  jurre  a  foun  coronement :    que  il  gardera  tera  a  tenure  lez  lejes  et  cuffumez  da  roialme,  et 

et  n-.elnttnera  lez  droitez  et  lez  francbifez  de  a  foun  foiair  lez  face  gardcr  et  ajfermer  que 

fynt   ef^life  grauntfZ  auncicnment  d&  drtitez  hz  gentez  du  people  ai'ont  faitez  et  efliez,  et  Its 

royi  chrijliens  dEnglettre,  et  a  nil  gardera  toidez  mal-veyi  leyz  et  cuftumes  de  tout  oujlera,  et  ferme 

fcx.  terrez   bonoures  et   dignities   droiturelx   et  peas  et  eftablic  al  people  de  foun  roialme  en  ceo 

franks  ite!  coroa  du  roialme  dLngktere  en  tout  garde  ef gardera  a  foun  foiair  :    come  Dieu  luy 

maxtr  dcntteiti  fanz.  mill  maner  ttaminufement,  aide.    Tit.  facramcntinn  regis.  fol.  m.  tj. 


Ch.  7.  of   PERSONS.  237 


CHAPTER    THE     SEVENTH. 
OF     THE     KING's     PREROGATIVE. 


IT  was  obferved  in  a  former  chapter  a,  that  one  of  the  princi- 
pal bulwarks  of  civil  liberty,  or  (in  other  words)  of  the  Bri- 
tifh  constitution,  was  the  limitation  of  the  king's  prerogative  by 
bounds  fo  certain  and  notorious,  that  it  is  impofilble  he  mould 
ever  exceed  them,  without  the  confent  of  the  people,  on  the  one 
hand  ;  or  without,  on  the  other,  a  violation  of  that  original  con- 
trad!:,   which  in  all  fcates  impliedly,  and  in  ours   moll  expreiDy, 
fubfifts  between  the  prince  and  the  fubjedt.    It  will  now  be  our 
bufinefs  to  confider  this  prerogative  minutely;  to  demonftrate  it's 
neceffity  in  general ;    and  to  mark  out  in  the  moft  important  in- 
ftances  it's  particular  extent  and  reftridtions :  from  which  conlider- 
ations  this  conclulion  will  evidently  follow,  that  the  powers  which 
are  vetted  in  the  crown  by  the  laws  of  England,  are  necefTary  for 
the  fupport  of  fociety ;  and  do  not  intrench  any  farther  on  our  na- 
tural liberties,  than  is  expedient  for  the  maintenance  of  our  civil. 

THERE  cannot  be  a  ftronger  proof  of  that  genuine  freedom, 
which  is  the  boaft  of  this  age  and  country,  than  the  power  of 
difcuffing  and  examining,  with  decency  and  refpecT:,  the  limits  of 
the  king's  prerogative.  A  topic,  that  in  Ibme  former  ages  was 
thought  too  delicate  and  facred  to  be  profaned  by  the  pen  of  a 
fubjedt.  It  was  ranked  among  the  arcana  imperii;  and,,  like  the 

*  chap. i.  page  141. 

myfteries 


238  The    RIGHTS  BOOK!. 

myfleries  of  the  bona  dea,  was  not  differed  to  be  pried  into  by  any 
but  fuch  as  were  initiated  in  it's  fervice :  becaufe  perhaps  the  exer- 
tion of  the  one,  like  the  folemnities  of  the  other,  would  not  bear 
the  infpe&ion  of  a  rational  and  fober  enquiry.  The  glorious  queen 
Elizabeth  herfelf  made  no  fcruple  to  direct  her  parliaments  to  ab- 
ftain  from  difcourfmg  of  matters  of  ftateb;  and  it  was  the  conftant 
language  of  this  favorite  princefs  and  her  minifters,  that  even  that 
auguft  affembly  "  ought  not  to  deal,  to  judge,  or  to  meddle,  with 
"  her  majefty's  prerogative  royal0."  And  her  fucceffor,  king  James 
the  firfl,  who  had  imbibed  high  notions  of  the  divinity  of  regal 
fway,  more  than  once  laid  it  down  in  his  fpeeches,  that  "  as  it  is 
"  atheifm  and  blafphemy  in  a  creature  to  difpute  what  the  deity 
"  may  do,  fo  it  is  prefumption  and  fedition  in  a  fubjedl  to  difpute 
"  what  a  king  may  do  in  the  height  of  his  power  :  good  chrif- 
" tians,  he  adds,  will  be  content  with  God's  will,  revealed  in  his 
"  word ;  and  good  fubjefts  will  reft  in  the  king's  will,  revealed 
"  in  his  law d." 

BUT,  whatever  might  be  the  fentiments  of  fome  of  our  prin- 
ces, this  was  never  the  language  of  our  antient  constitution  and 
laws.  The  limitation  of  the  regal  authority  was  a  firft  and  efTen- 
tial  principle  in  all  the  Gothic  fyftems  of  government  eftablifhed 
in  Europe;  though  gradually  driven  out  and  overborne,  by  violence 
and  chicane,  in  moft  of  the  kingdoms  on  the  continent.  We  have 
feen,  in  the  preceding  chapter,  the  fentiments  of  Braclon  and  For- 
tefcue,  at  the  diftance  of  two  centuries  from  each  other.  And  fir 
Henry  Finch,  under  Charles  the  firft,  after  the  lapfe  of  two  cen- 
turies more,  though  he  lays  down  the  law  of  prerogative  in  very 
ftrong  and  emphatical  terms,  yet  qualifies  it  with  a  general  re- 
fraction, in  regard  to  the  liberties  of  the  people.  "  The  king 
"  hath  a  prerogative  in  all  things,  that  are  not  injurious  to  the 
"  fubjecl: ;  for  in  them  all  it  mufl  be  remembered,  that  the  king's 
"  prerogative  ftretcheth  not  to  the  doing  of  any  wrong6."  Nihil 

b  Dewes.  479.  d  King  James's  works.  557.  531. 

c  Hid.  645.  «  Finch,  L.  84,  85. 

enim 


Ch.  7.  of    PERSONS.  239 

enim  aliud  poteft  rex,  nifi  Id  folum  quod  de  jure  potejl {.  And  here 
it  may  be  fome  fatisfadtion  to  remark,  how  widely  the  civil  law 
differs  from  our  own,  with  regard  to  the  authority  of  the  laws 
OVer  the  prince,  or  (as  a  civilian  would  rather  have  expreffed  it) 
the  authority  of  the  prince  over  the  laws.  It  is  a  maxim  of  the 
Englifh  law,  as  we  have  feen  from  Braclon,  that  "  rex  debet  ejje 
"ful>  lege,  quid  lex  facit  regem  :"  the  imperial  law  will  tell  us, 
that  "  in  omnibus,  imperatoris  excipitur  for  tuna;  cut  iffas  leges  Deus 
"fubjecit*"  We  lhall  not  long  hefitate  to  which  of  them  to  give 
the  preference,  as  mod  conducive  to  thofe  ends  for  which  focie- 
ties  were  framed,  and  are  kept  together ;  efpecially  as  the  Roman 
lawyers  themfelves  feem  to  be  fenfible  of  the  unreafonablenefs  of 
their  own  conftitution.  "  Decet  tamen  principem"  fays  Paul  us, 
"Jervare  leges,  quibus  ipfe  fohitus  eft1*."  This  is  at  once  laying 
down  the  principle  of  defpotic  power,  and  at  the  fame  time  ac- 
knowleging  it's  abfurdity. 

B  Y  the  word  prerogative  we  ufually  underfland  that  fpecial 
pre-eminence,  which  the  king  hath,  over  and  above  all  other 
perfons,  and  out  of  the  ordinary  courfe  of  the  common  law,  in 
right  of  his  regal  dignity.  It  fignifies,  in  it's  etymology,  (from 
prae  and  rogo]  fomething  that  is  required  or  demanded  before,  or 
in  preference  to,  all  others.  And  hence  it  follows,  that  it  muft  be 
in  it's  nature  lingular  and  eccentrical;  that  it  can  only  be  applied 
to  thofe  rights  and  capacities  which  the  king  enjoys  alone,  in 
contradiftinclicn  to  others,  and  not  to  thofe  which  he  enjoys  in. 
common  with  any  of  his  fubjefts  :  for  if  once  any  one  preroga- 
tive of  the  crown  could  be  held  in  common  with  the  fubjecl:,  it 
would  ceafe  to  be  prerogative  any  longer.  And  therefore  Finch ' 
lays  it  down  as  a  maxim,  that  the  prerogative  is  that  law  in  cafe 
of  the  king,  which  is  law  in  n©  cafe  of  the  fubjecl. 

PREROGATIVES  are  either  direSt  or  incidental.    The  direSl 
are  fuch  poiitive  fubftaritial  parts  of  the  royal  character  and  au~ 

f  Brafton.  7.3.  tr,  \.  c.  9.  b  Ff.  32.  1.23. 

£  Nov.  105.  §.2.  '  Finch.  L.  85. 

thorityy 


240  The    RIGHTS  BOOK  I. 

thority,  as  are  rooted  in  and  fpring  from  the  king's  political  per- 
fon,  confidered  merely  by  itfelf,  without  reference  to  any  other 
extrinfic  circumftance  ;  as,  the  right  of  fending  embaffadors,  of 
creating  peers,  and  of  making  war  or  peace.  But  fuch  preroga- 
tives as  are  incidental  bear  always  a  relation  to  fomething  elfe, 
diftincl:  from  the  king's  perfon  ;  and  are  indeed  only  exceptions, 
in  favour  of  the  crown,  to  thofe  general  rules  that  are  eftablifhed 
for  the  reft  of  the  community  :  fuch  as,  that  no  cofts  mall  be 
recovered  againft  the  king ;  that  the  king  can  never  be  a  joint- 
tenant  ;  and  that  his  debt  (hall  be  preferred  before  a  debt  to  any 
of  his  fubjedls.  Thefe,  and  an  infinite  number  of  other  inftan- 
ces,  will  better  be  understood,  when  we  come  regularly  to  con- 
fider  the  rules  themfelves,  to  which  thefe  incidental  prerogatives 
are  exceptions.  And  therefore  we  will  at  prefent  only  dwell  upon 
the  king's  fubftantive  or  direct  prerogatives. 

THE  s  E  fubftantive  or  direct  prerogatives  may  again  be  divided 
into  three  kinds  :  being  fuch  as  regard,  firft,  the  king's  royal 
character  ;  fecondly,  his  royal  authority  ;  and,  laftly,  his  royal  in- 
come. Thefe  are  neceflary,  to  fecure  reverence  to  his  perfon,  obe- 
dience to  his  commands,  and  an  affluent  fupply  for  the  ordinary 
expenfes  of  government ;  without  all  of  which  it  is  impoffible  to 
maintain  the  executive  power  in  due  independence  and  vigour. 
Yet,  in  every  branch  of  this  large  and  extenfive  dominion,  our 
free  conftitution  has  interpofed  fuch  feafonable  checks  and  reftric- 
tions,  as  may  curb  it  from  trampling  on  thofe  liberties,  which  it 
was  meant  to  fecure  and  eftablifh.  The  enormous  weight  of  pre- 
rogative (if  left  to  itfelf,  as  in  arbitrary  government  it  is)  fpreads 
havoc  and  deftrudlion  among  all  the  inferior  movements  :  but, 
when  balanced  and  bridled  (as  with  us)  by  it's  proper  counter- 
poife,  timely  and  judicioufly  applied,  it's  operations  are  then 
equable  and  regular,  it  invigorates  the  whole  machine,  and  en- 
ables every  part  to  anfwer  the  end  of  it's  conftrudlion. 

I  N  the  prefent  chapter  we  mall  only  confider  the  two  firft  of 
thefe  divifions,  which  relate  to  the  king's  political  cbarafter  and 

authority ; 


Cfj.  7*  of    PERSONS.  241 

authority:  or,  in  other  words,  his  dignify 'And  regal  power-,  to 
which  laft  the  name  of  prerogative  is  frequently  narrowed  and 
confined.  The  other  divifion,  which  forms  the  royal  revenue, 
will  require  a  diflinct  examination ;  according  to  the  known  dif- 
tribution  of  the  feodal  writers,  who  diflinguifh  the  royal  prero- 
gatives into  the  majora  and  m'mora  regalia,  in  the  latter  of  which 
claffes  the  rights  of  the  revenue  are  ranked.  For,  to  ufe  their  own 
words,  "majora  regalia  imperii  prae-eminentiam  fpeftant ;  minor  a 
"  vero  ad  commodum  pecuniar  him  immediate  attinent ;  et  haec  proprie. 
"fife alia  funt,  et  ad  jus  fifci  pertinent k." 

FIRST,  then,  of  the  royal  dignity.  Under  every  monarchical 
eftablifhment,  it  is  neceflary  to  diftinguim  the  prince  from  his 
fubjects,  not  only  by  the  outward  pomp  and  decorations  of  ma- 
jefty,  but  alfo  by  afcribing  to  him  certain  qualities,  as  inherent  in 
his  royal  capacity,  diftinct  from  and  fuperior  to  thofe  of  any  other 
individual  in  the  nation.  For,  though  a  philofophical  mind  will 
confider  the  royal  perfon  merely  as  one  man  appointed  by  mutual 
confent  to  prefide  over  many  others,  and  will  pay  him  that  reve- 
rence and  duty  which  the  principles  of  fociety  demand,  yet  the 
mafs  of  mankind  will  be  apt  to  grow  infolent  and  refractory,  if 
taught  to  confider  their  prince  as  a  man  of  no  greater  perfection 
than  themfelves.  The  law  therefore  afcribes  to  the  king,  in  his 
high  political  character,  not  only  large  powers  and  emoluments 
which  form  his  prerogative  and  revenue,  but  likewife  certain  at- 
tributes of  a  great  and  tranfcendent  nature ;  by  which  the  people 
are  led  to  confider  him  in  the  light  of  a  fuperior  being,  and  to 
pay  him  that  awful  refpect,  which  may  enable  him  with  greater 
eafe  to  carry  on  the  bufinefs  of  government.  This  is  what  I 
underftahd  by  the  royal  dignity,  the  feveral  branches  of  which 
we  will  now  proceed  to  examine. 

I.  AND,  firft,  the  law  afcribes  to  the  king  the  attribute  of 

fover -eignty,  or  pre-eminence.     "Rex  eft  v/carius,"  fays  Bracton  ', 

"  et  minijhr  Dei  in  terra  :  omnis  quidemfub  eo  eft,  et  ipfe  fub  nullo, 

k  Peregrin,  de  jure  ffc.  L  I.  c.  I,  num.  9.  '  /.  I.  c.  8. 

G  g  "  nifi 


242  The    RIGHTS  BOOK!. 

"  nifi  tantum  fub  Deo."  He  is  faid  to  have  imperial  dignity;  and 
in  charters  before  the  conquefl  is  frequently  ftiled  bafileus  and  im- 
perator,  the  titles  refpedlively  affumed  by  the  emperors  of  the 
eaft  and  weft  ra.  His  realm  is  declared  to  be  an  empire,  and  his 
crown  imperial,  by  many  ac"bs  of  parliament,  particularly  the  fta- 
tutes  24 Hen. VIII.  c.i2.  and  25  Hen. VIII.  c.28n;  which  at  the 
fame  time  declare  the  king  to  be  the  fupreme  head  of  the  realm 
in  matters  both  civil  and  ecclefiaftical,  and  of  confequence  inferior 
to  no  man  upon  earth,  dependent  on  no  man,  accountable  to  no 
man.  Formerly  there  prevailed  a  ridiculous  notion,  propagated 
by  the  German  and  Italian  civilians,  that  an  emperor  could  do 
many  things  which  a  king  could  not,  (as  the  creation  of  notaries 
and  the  like)  and  that  all  kings  were  in  fome  degree  fubordinate 
and  fubjecl:  to  the  emperor  of  Germany  or  Rome.  The  meaning 
therefore  of  the  legiflature,  when  it  ufes  thefe  terms  of  empire 
and  imperial,  and  applies  them  to  the  realm  and  crown  of  Eng- 
land, is  only  to  aflert  that  our  king  is  equally  fovereign  and  in- 
dependent within  thefe  his  dominions,  as  any  emperor  is  in  his 
empire0;  and  owes  no  kind  of  fubjeftion  to  any  other  potentate 
upon  earth.  Hence  it  is,  that  no  fuit  or  action  can  be  brought 
againft  the  king,  even  in  civil  matters,  becaufe  no  court  can  have 
jurifdidtion  over  him.  For  all  jurifdidlion  implies  fuperiority  of 
power :  authority  to  try  would  be  vain  and  idle,  without  an  au- 
thority to  redrefs ;  and  the  fentence  of  a  court  would  be  con- 
temptible, unlefs  that  court  had  power  to  command  the  execution 
of  it :  but  who,  fays  Finch p,  mall  command  the  king  ?  Hence 
it  is  likewife,  that  by  law  the  perfon  of  the  king  is  facred,  even 
though  the  meafures  purfued  in  his  reign  be  completely  tyranni- 
cal and  arbitrary  :  for  no  jurifdiftion  upon  earth  has  power  to 
try  him  in  a  criminal  way ;  much  lefs  to  condemn  him  to  punifh- 
ment.  If  any  foreign  jurifdiction  had  this  power,  as  was  formerly 
claimed  by  the  pope,  the  independence  of  the  kingdom  would 
be  no  more :  and,  if  fuch  a  power  were  vefted  in  any  domeftic 

m  Seld.  tit.  of  hon.  i.  2.  hattrft  hi  regr.n  fuo,  qtias  imperator  i> entiicaiat 

"  See  alfo  24Geo.  II.  €.24.    5  Geo.  III.  in  imferio.     (M.  Paris,  A.  D.  1095.) 
c.  27.  P  Finch.  L.  83. 

•  Rex  attega'vit,   quod  iffe  omnes  lilertates  tribunal} 


Ch.  7.  of    PERSONS.  243 

tribunal,  there  would  foon  be  an  end  of  the  conftitution,  by  de- 
ftroying  the  free  agency  of  one  of  the  conftituent  parts  of  the 
fovereign  legiflative  power. 

ARE  then,  it  may  be  afked,  the  fubjects  of  England  totally 
deftitute  of  remedy,  in  cafe  the  crown  mould  invade  their  rights, 
either  by  private  injuries,  or  public  oppreffions  ?  To  this  we  may 
anfwer,  that  the  law  has  provided  a  remedy  in  both  cafes. 

AND,  firft,  as  to  private  injuries;  if  any  perfon  has,  in  point 
of  property,  a  juft  demand  upon  the  king,  he  muft  petition  him 
in  his  court  of  chancery,  where  his  chancellor  will  adminifter 
right  as  a  matter  of  grace,  though  not  upon  compulfion q.  And 
this  is  entirely  confonant  to  what  is  laid  down  by  the  writers  on 
natural  law.  "  A  fubject,  fays  PufFendorf  %  fo  long  as  he  conti- 
"  nues  a  fubject,  hath  no  way  to  oblige  his  prince  to  give  him  his 
"  due,  when  he  refufes  it ;  though  no  wife  prince  will  ever  refufe 
"  to  ftand  to  a  lawful  contract.  And,  if  the  prince  gives  the  fub- 
"jedt  leave  to  enter  an  action  againft  him,  upon  fuch  contract, 
"  in  his  own  courts,  the  action  itfelf  proceeds  rather  upon  natu- 
"  ral  equity,  than  upon  the  municipal  laws."  For  the  end  of  fuch 
action  is  not  to  compel  the  prince  to  obferve  the  contract,  but  to 
perfuade  him.  And,  as  to  perfonal  wrongs ;  it  is  well  obferved 
by  Mr  Locke s,  "  the  harm  which  the  fovereign  can  do  in  his 
"  own  perfon  not  being  likely  to  happen  often,  nor  to  extend  it- 
"  felf  far ;  nor  being  able  by  his  {ingle  ftrength  to  fubvert  the 
"  laws,  nor  opprefs  the  body  of  the  people,  ( mould  any  prince 
"  have  fo  much  weaknefs  and  ill  nature  as  to  endeavour  to  do  it) 
"  — the  inconveniency  therefore  of  fome  particular  mifchiefs,  that 
"  may  happen  fometimes,  when  a  heady  prince  comes  to  the 
"  throne,  are  well  recompenfed  by  the  peace  of  the  public  and 
"  fecurity  of  the  government,  in  the  perfon  of  the  chief  magif- 
"  trate  being  thus  fet  out  of  the  reach  of  danger." 

i  Finch.  L.  255.  »  on  Gov.  p.  2.  §.205. 

'  Law  of  N,  and  N.  b.  8.  c.  to. 

i 

G  g  2  NEXT, 


244  ?%e    RIGHTS  BOOK!. 

NEXT,  as  to  cafes  of  ordinary  public  opprefilon,  where  the 
vitals  of  the  conftitution  are  not  attacked,  the  law  hath  alfo  afligned 
a  remedy.  For,  as  a  king  cannot  mifufe  his  power,  without  the 
advice  of  evil  counfellors,  and  the  affiftance  of  wicked  minifters, 
thefe  men  may  be  examined  and  punifhed.  The  conftitution  has 
therefore  provided,  by  means  of  indictments,  and  parliamentary 
impeachments,  that  no  man  mall  dare  to  afiift  the  crown  in  con- 
tradiction to  the  laws  of  the  land.  But  it  is  at  the  fame  time  a 
maxim  in  thofe  laws,  that  the  king  himfelf  can  do  no  wrong  : 
fince  it  would  be  a  great  weaknefs  and  abfurdity  in  any  fyftem  of 
pofitive  law,  to  define  any  poflible  wrong,  without  any  poflible 
redrefs. 

FOR,  as  to  fuch  public  oppreflions  as  tend  to  difTolve  the 
conftitution,  and  fubvert  the  fundamentals  of  government,  they 
are  cafes  which  the  law  will  not,  out  of  decency,  fuppofe ;  being 
incapable  of  diftrufting  thofe,  whom  it  has  inverted  with  any  part 
of  the  fupreme  power;  fince  fuch  diftruft  would  render  the  ex- 
ercife  of  that  power  precarious  and  impracticable'.  For,  where- 
ever  the  law  exprefles  it's  diftruft  of  abufe  of  power,  it  always 
vefts  a  fuperior  coercive  authority  in  fome  other  hand  to  correct 
it ;  the  very  notion  of  which  deftroys  the  idea  of  fovereignty.  If 
therefore  (for  example)  the  two  houfes  of  parliament,  or  either 
of  them,  had  avowedly  a  right  to  animadvert  on  the  king,  or 
each  other,  or  if  the  king  had  a  right  to  animadvert  on  either  of 
the  houfes,  that  branch  of  the  legiflature,  fo  fubject  to  animad- 
verfion,  would  inftantly  ceafe  to  be  part  of  the  fupreme  power; 
the  ballance  of  the  conftitution  would  be  overturned ;  and  that 
branch  or  branches,  in  which  this  jurifdiction  refided,  would  be 
completely  fovereign.  The  fuppofition  of  law  therefore  is,  that 
neither  the  king  nor  either  houfe  of  parliament  (collectively  taken) 
is  capable  of  doing  any  wrong ;  fince  in  fuch  cafes  the  law 

*  See  thefe  points  more  fully  difcufled  in  learned  author  has  thrown  many  new  and 
the  conjidtrations  on  the  !aiv  of  forfeitures,  3d  important  lights  on  the  texture  of  our  happy 
edit.  pag. 109 126.  wherein  the  very  conAitution. 

feels 


Ch,  7.  of   PE  RS  ON  s.  245 

feels  itfelf  incapable  of  furnifhing  any  adequate  remedy.  For 
which  reafon  *ull  oppreflions,  which  may  happen  to  fpring  from 
any  branch  of  the  fovereign  power,  muft  neceffarily  be  out  of  the 
reach  of  any  jtated  rule,  or  exprefs  legal  provifion  :  but,  if  ever 
they  unfortunately  happen,  the  prudence  of  the  times  muft  pro- 
vide new  remedies  upon  new  emergencies. 

INDEED,  it  is  found  by  experience,  that  whenever  die  un- 
conftitutional  oppreflions,  even  of  the  fovereign  power,  advance 
with  gigantic  ftrides  and  threaten  defolation  to  a  ftate,  mankind 
will  not  be  reafoncd  out  of  the  feelings  of  humanity ;   nor  will 
facrifice  their  liberty  by  a  fcrupulous  adherence  to  thofe  political 
maxims,  which  were  originally  eftablifhed  to  preferve  it.     And 
therefore,  though  the  pofitive  laws  are  filent,  experience  will  fur- 
nifli  us  with  a  very  remarkable  cafe,  wherein  nature  and  reafoa 
prevailed.   When  king  James  the  fecond  invaded  the  fundamental 
conftitution  of  the  realm,  the  convention  declared  an  abdication, 
whereby  the  throne  was  rendered  vacant,   which  induced  a  new 
fettlement  of  the  crown.    And  fo  far  as  this  precedent  leads,  and 
no  farther,  we  may  now  be  allowed  to  lay  down  the  law  of  redrefs 
againft  public  oppreflion.     If  therefore  any  future  prince  mould 
endeavour  to  fubvert  the  conftitution  by  breaking  the  original 
contract  between  king  and  people,  mould  violate  the  fundamental 
laws,  and  mould  withdraw  himfelf  out  of  the  kingdom ;  we  are 
now  authorized  to  declare  that  this  conjunction  of  circumftances 
would  amount  to  an  abdication,  and  the  throne  would  be  thereby 
vacant.  But  it  is  not  for  us  to  fay,  that  any  one,  or  two,  of  thefe 
ingredients  would  amount  to  fuch  a  fituationj   for  there  our  pre- 
cedent would  fail  us.    In  thefe  therefore,  or  other  circumftances, 
which  a  fertile  imagination  may  furnim,  iince  both  law  and  hif- 
tory  are  filent,   it  becomes  us  to  be  filent  too;  leaving  to  future 
generations,  whenever  neceffity  and  the  fafety  of  the  whole  fhall 
require  it,  the  exertion  of  thofe  inherent  (though  latent)  powers 
of  fociety,  which  no  climate,  no  time,  no  conftitution,  no  con- 
tract, can  ever  deftroy  or  diminim. 

II.  BESIDES 


246  The    RIGHTS  BOOK  I. 

I 

II.  BESIDES  the  attribute  of  fovereignty,  the  law  alfo  af- 
cribes  to  the  king,  in  his  political  capacity,  abfolute  perfection. 
The  king  can  do  no  wrong.  Which  antient  and  fundamental 
maxim  is  not  to  be  understood,  as  if  every  thing  tranfacted  by  the 
government  was  of  courfe  juft  and  lawful,  but  means  only  two 
things.  Firft,  that  whatever  is  exceptionable  in  the  conduct  of 
public  affairs  is  not  to  be  imputed  to  the  king,  nor  is  he  anfwer- 
able  for  it  perfonally  to  his  people  :  for  this  doctrine  would  to- 
tally deftroy  that  constitutional  independence  of  the  crown,  which 
is  neceffary  for  the  balance  of  power,  in  our  free  and  active,  and 
therefore  compounded,  constitution.  And,  fecondly,  it  means 
that  the  prerogative  of  the  crown  extends  not  to  do  any  injury  : 
it  is  created  for  the  benefit  of  the  people,  and  therefore  cannot 
be  exerted  to  their  prejudice  u. 

THE  king,  moreover,  is  not  only  incapable  of  doing  wrong, 
but  even  of  thinking  wrong  :  he  can  never  mean  to  do  an  impro- 
per thing  :  in  him  is  no  folly  or  weaknefs.  And  therefore,  if  the 
crown  mould  be  induced  to  grant  any  franchife  or  privilege  to  a 
Subject  contrary  to  reafon,  or  in  any  wife  prejudicial  to  the  com- 
monwealth, or  a  private  perfon,  the  law  will  not  fuppofe  the 
king  to  have  meant  either  an  unwife  or  an  injurious  action,  but 
declares  that  the  king  was  deceived  in  his  grant ;  and  thereupon 
fuch  grant  is  rendered  void,  merely  upon  the  foundation  of  fraud 
and  deception,  either  by  or  upon  thofe  agents,  whom  the  crown 
has  thought  proper  to  employ.  For  the  law  will  not  caft  an  im- 
putation on  that  magistrate  whom  it  entruSts  with  the  executive 
power,  as  if  he  was  capable  of  intentionally  difregarding  his 
truft :  but  attributes  to  mere  impofition  (to  which  the  mofl  per- 
fect of  fublunary  beings  mult  Still  continue  liable)  thofe  little  in- 
advertencies, which,  if  charged  on  the  will  of  the  prince,  might 
leffen  him  in  the  eyes  of  his  fubjedts. 

J  Plowd.  487. 

YET 


Ch.  7.  of    PERSONS.  247 

YET  ftill,  notwithstanding  this  perfonal  perfection,  which  the 
law  attributes  to  the  fovereign,  the  conftitution  has  allowed  a  la- 
titude of  fuppofing  the  contrary,  in  refpect  to  both  honfes  of  par- 
liament j  each  of  which,  in  it's  turn,  hath  exerted  the  right  of 
remonftrating  and  complaining  to  the  king  even  of  thofe  acts  of 
royalty,  which  are  moft  properly  and  perfonally  his  own  j  fuch  as 
meffages  ligned  by  himfelf,  and  fpeeches  delivered  from  the  throne. 
And  yet,  fuch  is  the  reverence  which  is  paid  to  the  royal  perfon, 
that  though  the  two  houfes  have  an  undoubted  right  to  confider 
thefe  acts  of  ftate  in  any  light  whatever,  and  accordingly  treat 
them  in  their  addrefles  as  perfonally  proceeding  from  the  prince, 
yet,  among  themfelves,  (to  preferve  the  more  perfect  decency, 
and  for  the  greater  freedom  of  debate)  they  ufually  fuppofe  them 
to  flow  from  the  advice  of  the  adminiftration.  But  the  privilege 
of  canvaffing  thus  freely  the  perfonal  acts  of  the  fovereign  (either 
directly,  or  even  through  the  medium  of  his  reputed  advifers) 
belongs  to  no  individual,  but  is  confined  to  thofe  auguft  afTem- 
blies  :  and  there  too  the  objections  muft  be  propofed  with  the 
utmoft  refpect  and  deference.  One  member  was  fent  to  the  tower  w, 
for  fuggefting  that  his  majefty's  anfwer  to  the  addrefs  of  the 
commons  contained  "  high  words,  to  fright  the  members  out  of 
«•*  their  duty ;"  and  another  ",  for  faying  that  a  part  of  the  king's 
fpeech  "  feemed  rather  to  be  calculated  for  the  meridian  of  Ger- 
"  many  than  Great  Britain,  and  that  the  king  was  a  ftranger  to 
"our  language  and  conftitution." 

IN  farther  purfuance  of  this  principle,  the  law  alfo  determines 
that  in  the  king  can  be  no  negligence,  or  laches,  and  therefore  no 
delay  will  bar  his  right.  Nullum  tempus  occurrit  regi  is  the  {land- 
ing maxim  upon  all  occafions  :  for  the  law  intends  that  the  king 
is  always  bufied  for  the  public  good,  and  therefore  has  not  leifure 
to  alien  his  right  within  the  times  limited  to  fubjects  y.  In  the 
king  alfo  can  be  no  flain  or  corruption  of  blood  :  for  if  the  heir  to 

w  Com.  Journ. -iSNov.  1685.  y  Finch.  L.  82.    Co.  Litt.po. 

1  Ibid.  4 Dec.  1717. 

the 


248  The    RIGHTS  BOOK!. 

the  crown  were  attainted  of  treafon  and  felony,  and  afterwards  the 
crown  fliould  defcend  to  him,  this  would  purge  the  attainder  ipfo 
fatto*.  And  therefore  when  Henry  VII,  who  as  earl  of  Richmond 
flood  attainted,  came  to  the  crown,  it  was  not  thought  neceflary 
to  pals  an  a<5t  of  parliament  to  reverfe  this  attainder}  becaufe,  as 
lord  Bacon  in  his  hiftory  of  that  prince  informs  us,  it  was  agreed 
that  the  aflumption  of  the  crown  had  at  once  purged  all  attain- 
ders. Neither  can  the  king  in  judgment  of  law,  as  king,  ever 
be  a  minor  or  under  age ;  and  therefore  his  royal  grants  and  af- 
fents  to  adls  of  parliament  are  good,  though  he  has  not  in  his 
natural  capacity  attained  the  legal  age  of  twenty  one a.  By  a  fla- 
tute  indeed,  28  Hen. VIII.  c.ij.  power  was  given  to  future  kings 
to  refcind  and  revoke  all  a<fts  of  parliament  that  fliould  be  made 
while  they  were  under  the  age  of  twenty  four  :  but  this  was  re- 
pealed by  the  flatute  i  Edw.VI.  c.n.  fo  far  as  related  to  that 
prince;  and  both  flatutes  are  declared  to  be  determined  by 
24  Geo.  II.  c.  24.  It  hath  alfo  been  ufually  thought  prudent, 
when  the  heir  apparent  has  been  very  young,  to  appoint  a  pro- 
tedlor,  guardian,  or  regent,  for  a  limited  time  :  but  the  very  ne- 
ceiTity  of  fuch  extraordinary  provifion  is  fufficient  to  demonflrate 
the  truth  of  that  maxim  of  the  common  law,  that  in  the  king  is 
no  minority  ;  and  therefore  he  hath  no  legal  guardian b. 

1  Finch.  L.  82.  government    at  twenty.     A  guardian   and 

*  Co.  Litt.  43.  council    of  regency  were    named   for  Ed- 

b  The  methods  of  appointing  this  guar-  ward  III,  by  the  parliament  which  depofed 

dian  or  regent  have  been  fo  various,  and  his  father  ;  the  young  king  being  then  fif- 

the  duration  of  his  power  fo  uncertain,  that  teen,  and  not  affuming  the  government  till 

from  thence  alone  it  may  be  collected  that  three  years  after.     When  Richard  II  fuc- 

his  office  is  unknown  to  the  common  law  ;  ceeded  at  the  age  of  eleven,  the  duke  of 

and   therefore    (  as  fir  Edward  Coke  fays,  Lancafter  took  upon  him  the  management 

4ln(l.  58.)   the  fureft  way  is  to  have  him  of  the  kingdom,   till  the  parliament  met, 

made  by  authority  of  the  great  council  in  which  appointed  a  nominal  council  to  affift 

parliament.     The  earl  of  Pembroke  by  his  him.     Henry  V  on  his  death-bed  named  a 

own  authority,  arTumed  in  very  troublefome  regent  and   a  gurrdian   for  his  infant  fon 

times,  the  regency  of  Henry  III,  who  was  Henry  VI,  then  nine  months  old  :    but  the 

then  only  nine  year.;  eld  ;  but  was  declared  parliament  altered  his  difpofition,  snd  ap- 

of  full  age  by  the  pope  at  feventeen,  con-  pointed   a    proteftor  and  council,    with   a 

firmed  the  great   charter  at  eighteen,  and  fpecial  limited  authority.  Both  thefe  princes 

took  upon  him  the  adminiilration  of  the  remained  in  a  ftate  of  pupillage  till  the  ?«e 

of 


Ch.  7.  of    PERSONS.  249 

III.   A  THIRD  attribute  of  the  king's  majefty  is  his  per- 
petuity.   The  law  afcribes  to  him,  in  his  political  capacity,  au 
abfolute  immortality.   The  king  never  dies.    Henry,  Edward,  or 
George  may  die;   but  the  king  furvives  them  all.    For  imme- 
diately upon  the  deceafe  of  the  reigning  prince  in  his  natural  ca- 
pacity, his  kingmip  or  imperial  dignity,  by  adt  of  law,  without 
any  interregnum  or  interval,  is  vefted  at  once  in  his  heir ;  who  is, 
eo  inftanti,  king  to  all  intents  and  purpofes.    And  fo  tender  is  the 
law  of  fuppofing  even  a  poffibility  of  his  death,  that  his  natural 
diflblution  is  generally  called  his  demife;  dimijjio  regis,  <uel  coronas: 
an  expreflion  which  fignifies  merely  a  transfer  of  property ;   for, 
as  is  obferved  in  Plowdenc,  when  we  fay  the  demife  of  the  crown, 
we  mean  only  that  in  confequence  of  the  difunion  of  the  king's 
body  natural  from  his  body  politic,  the  kingdom  is  transferred  or 
demifed  to  his  fucceflbr ;  and  fo  the  royal  dignity  remains  perpe- 
tual.   Thus  too,  when  Edward  the  fourth,  in  the  tenth  year  of 
his  reign,  was  driven  from  his  throne  for  a  few  months  by  the 
houfe  of  Lancafler,  this  temporary  transfer  of  his  dignity  was 
denominated  his  demife ;  and  all  procefs  was  held  to  be  difconti- 
nued,  as  upon  a  natural  death  of  the  king  d. 

of  twenty  three.    Edward  V,  at  the  age  of  The  ftatute  24  Geo.  II.  c.  24.  in  cafe  the 

thirteen,    was  recommended  by  his  father  crown   mould  defcend  to  any  of  the  child- 

to  the  care  of  the  duke  of  Glocefter  j  who  ren  of  Frederick  late  prince  of  Wales  un- 

was  declared  prote&or  by  the  privy  coun-  der  the  age  of  eighteen,  appoints  the  prin- 

cil.    The  ftatutes  25  Hen.VIII.  c.i2.  and  cefsdowager; — and  thatofjGeo.  III.  0.27. 

28  Hen.VIII.  c.  7.  provided,  that  the  fuc-  in  cafe  of  a  like  defcent  to  any  of  his  pre- 

cefibr,  if  a  male  and  under  eighteen,  or  if  fent  majefty's  children,  empowers  the  king 

a  female  and  under  fixteen,    fhould  be  till  to  name  either  the  queen,  the  princefs  dow- 

fuch  age  in  the  governance  of  his  or  her  ager,  or  any  defcendant  of  king  George  II 

natural  mother,   ( if  approved  by  the  king)  refiding  in  this  kingdom  ;  —  to  be  guardian 

and  fuch  other  counfellors  as  his  majefty  and  regent,  till  the  fucceflbr  attains  fuch  age, 

Ihould  by  will  or  otherwife  appoint :   and  aflifted  by  a  council  of  regency  :  the  powers 

he  accordingly  appointed  his  fixteen  execu-  of  them  all  being  exprefsly  defined  and  fet 

tors  to  have  the  government  of  his  fon,  Ed-  down  in  the  feveral  afts, 

ward  VI,  and  the  kingdom  ;  which  execu-  c  Plowd.  177.  234. 

tors  elected  the  earl  of  Hertford  protector.  A  M.  49Hen.VI.  pi.  I— 8. 

Hh  WE 


250  The    RIGHTS  BOOK!. 

W  E  are  next  to  confider  thofe  branches  of  the  royal  preroga- 
tive, which  invert  this  our  fovereign  lord,  thus  all-perfect  and  im- 
mortal in  his  kingly  capacity,  with  a  number  of  authorities  and 
powers;  in  the  exertion  whereof  confifts  the  executive  part  of 
government.  This  is  wifely  placed  in  a  fingle  hand  by  the  Britifli 
constitution,  for  the  fake  of  unanimity,  Strength  and  difpatch. 
Were  it  placed  in  many  hands,  it  would  be  Subject  to  many  wills : 
many  wills,  if  difunited  and  drawing  different  ways,  create 
weaknefs  in  a  government :  and  to  unite  thofe  feveral  wills,  and 
reduce  them  to  one,  is  a  work  of  more  time  and  delay  than  the 
exigencies  of  State  will  afford.  The  king  of  England  is  there- 
fore not  only  the  chief,  but  properly  the  fole,  magistrate  of  the 
nation ;  all  others  acting  by  commiffion  from,  and  in  due  fubor- 
dination  to  him  :  in  like  manner  as,  upon  the  great  revolution  in 
the  Roman  State,  all  the  powers  of  the  antient  magistracy  of  the 
commonwealth  were  concentred  in  the  new  emperor ;  fo  that,  as 
Gravina  e  expreSies  it,  "  in  ejus  untus  perfona  veteris  retpublicae  vis 
"  atque  majejlas  per  cumulatas  magijlratuum  potejlates  exprimebatur." 

AFTER  what  has  been  premifed  in  this  chapter,  I  mall  not 
(I  truSt)  be  confidered  as  an  advocate  for  arbitrary  power,  when  I 
lay  it  down  as  a  principle,  that  in  the  exertion  of  lawful  prero- 
gative, the  king  is  and  ought  to  be  abfolute ;  that  is,  fo  far  ab- 
folute,  that  there  is  no  legal  authority  that  can  either  delay  or  re- 
SiSt  him.  He  may  reject  what  bills,  may  make  what  treaties,  may 
coin  what  money,  may  create  what  peers,  may  pardon  what  of- 
fences he  pleafes  :  unlefs  where  the  constitution  hath  expreSfly, 
or  by  evident  confequence,  laid  down  fome  exception  or  boundary; 
declaring,  that  thus  far  the  prerogative  {hall  go  and  no  farther. 
For  otherwife  the  power  of  the  crown  would  indeed  be  but  a 
name  and  a  Shadow,  inefficient  for  the  ends  of  government,  if, 
where  it's  jurisdiction  is  clearly  eftabliShed  and  allowed,  any  man 
or  body  of  men  were  permitted  to  difobey  it,  in  the  ordinary 
courfe  of  law  :  I  fay,  in  the  ordinary  courfe  of  law ;  for  I  do 

•   Ofig.  I.    §.105. 

not 


Ch.  7»  tf/"   PERSONS.  251 

not  now  fpeak  of  thofe  extraordinary  recourfes  to  firft  principles, 
which  are  neceflary  when  the  contracts  of  fociety  are  in  danger 
of  diffolution,  and  the  law  proves  too  weak  a  defence  agamlt  the 
violence  of  fraud  or  oppreflion.  And  yet  the  want  of  attending 
to  this  obvious  distinction  has  occafioned  thefe  doctrines,  of  ab- 
folute  power  in  the  prince  and  of  national  refinance  by  the  people, 
to  be  much  mifunderftood  and  perverted  by  the  advocates  for  fla- 
very  on  the  one  hand,  and  the  demagogues  of  faction  on  the 
other.  The  former,  obferving  the  abfolute  fovereignty  and  tranf- 
cendent  dominion  of  the  crown  laid  down  (as  it  certainly  is)  moft 
ftrongly  and  emphatically  in  our  lawbooks,  as  well  as  our  homi- 
lies, have  denied  that  any  cafe  can  be  excepted  from  fo  general 
and  pofitive  a  rule ;  forgetting  how  impoftible  it  is,  in  any  prac- 
tical fyftem  of  laws,  to  point  out  beforehand  thefe  eccentrical 
remedies,  which  the  fudden  emergence  of  national  diftrefs  may 
dictate,  and  which  that  alone  can  juftify.  On  the  other  hand, 
over-zealous  republicans,  feeling  the  abfurdity  of  unlimited  paf- 
live  obedience,  have  fancifully  (or  fometimes  factioufly)  gone  over 
to 'the  other  extreme:  and,  becaufe  refinance  is  justifiable  to  the 
perfon  of  the  prince  when  the  being  of  the  ftate  is  endangered, 
and  the  public  voice  proclaims  fuch  refinance -neceflary,  they  have 
therefore  allowed  to  every  individual  the  right  of  determining  this 
expedience,  and  of  employing  private  force  to  refift  even  private 
oppreflion.  A  doctrine  productive  of  anarchy,  and  (in  confequence) 
equally  fatal  to  civil  liberty  as  tyranny  itfelf.  For  civil  liberty, 
rightly  understood,  confiSts  in  protecting  the  rights  of  individuals 
by  the  united  force  of  fociety  :  fociety  cannot  be  maintained,  and 
of  courfe  can  exert  no  protection,  without  obedience  to  fome  fove- 
reign  power :  and  obedience  is  an  empty  name,  if  every  indivi- 
dual has  a  right  to  decide  how  far  he  himfelf  fhall  obey. 

IN  the  exertion  therefore  of  thofe  prerogatives,  which  the  law 
has  given  him,  the  king  is  irrefiftible  and  abfolute,  according  to 
the  forms  of  the  constitution.  And  yet,  if  the  confequence  of  that 
exertion  be  manifestly  to  the  grievance  or  dishonour  of  the  king- 
dom, the  parliament  will  call  his  advifers  to  a  juft  and  fevere  ac- 

H  h  2  count. 


252  7%e    RIGHTS  BOOK  I. 

count.  For  prerogative  confifling  (as  Mr  Locke f  has  well  defined 
it)  in  the  difcretionary  power  of  adting  for  the  public  good,  where 
the  pofitive  laws  are  filent,  if  that  difcretionary  power  be  abufed 
to  the  public  detriment,  fuch  prerogative  is  exerted  in  an  uncon- 
ftitutional  manner.  Thus  the  king  may  make  a  treaty  with  a 
foreign  flate,  which  mall  irrevocably  bind  the  nation  ;  and  yet, 
when  fuch  treaties  have  been  judged  pernicious,  impeachments 
have  purfued  thofe  miniflers,  by  whofe  agency  or  advice  they 
were  concluded. 

THE  prerogatives  of  the  crown  ( in  the  fenfe  under  which 
we  are  now  confidering  them)  refpedl  either  this  nation's  in- 
tercourfe  with  foreign  nations,  or  it's  own  domeflic  government 
and  civil  polity. 

WITH  regard  to  foreign  concerns,  the  king  is  the  delegate  or 
reprefentative  of  his  people.  It  is  impofTible  that  the  individuals 
of  a  ftate,  in  their  collective  capacity,  can  tranfadt  the  affairs  of 
that  flate  with  another  community  equally  numerous  as  them- 
felves.  Unanimity  mufl  be  wanting  to  their  meafures,  and  flrength 
to  the  execution  of  their  counfels.  In  the  king  therefore,  as  in  a 
center,  all  the  rays  of  his  people  are  united,  and  form  by  that 
union  a  confiflency,  fplendor,  and  power,  that  make  him  feared 
and  refpedted  by  foreign  potentates  -,  who  would  fcruple  to  enter 
into  any  engagement,  that  mufl  afterwards  be  revifed  and  rati- 
fied by  a  popular  affembly.  What  is  done  by  the  royal  authority, 
with  regard  to  foreign  powers,  is  the  adt  of  the  whole  nation  : 
what  is  done  without  the  king's  concurrence  is  the  adt  only  of 
private  men.  And  fo  far  is  this  point  carried  by  our  law,  that 
it  hath  been  held g,  that  mould  all  the  fubjedts  of  England  make 
war  with  a  king  in  league  with  the  king  of  England,  without  the 
royal  affent,.  fuch  war  is  no  breach  of  the  league.  And,,  by  the 
ilatute  aHen.V.  c.  6.  any  fubjedi  committing  adts  of  hostility 
upon  any  nation  in  league  with  the  king,  was  declared  to  be 
guilty  of  high  treason :  and,  though  that  adt  was  repealed  by  the 

'  on  Gov,  2,  <j.  166.  *  flnft.  152. 

ilatute 


Ch.  7.  of    PERSONS.  253 

ftatute  20 Hen. VI.  c.n.  fo  far  as  relates  to  the  making  this  of- 
fence high  treafon,  yet  ftill  it  remains  a  very  great  offence  againft 
the  law  of  nations,  and  punifhable  by  our  laws,  either  capitally 
or  otherwife,  according  to  the  circumltances  of  the  cafe. 

I.  THE  king  therefore,  confidered  as  the  reprefentative  of  his 
people,  has  the  fole  power  of  fending  embafladors  to  foreign 
Hates,  and  receiving  embafladors  at  home.  This  may  lead  us  into 
a  mort  enquiry,  how  far  the  municipal  laws  of  England  inter- 
meddle with  or  protect  the  rights  of  thefe  meflengers  from  one 
potentate  to  another,  whom  we  call  embafladors. 

TH  E  rights,  the  powers,  the  duties,  and  the  privileges  of  em- 
bafladors are  determined  by  the  law  of  nature  and  nations,  and 
not  by  any  municipal  conftitutions.  For,  as  they  reprefent  the 
perfons  of  their  refpective  matters,  who  owe  no  fubjection  to  any 
laws  but  thofe  of  their  own  country,  their  actions  are  not  fubje<£t 
to  die  control  of  the  private  law  of  that  ftate,  wherein  they  are 
appointed  to  refide.  He  that  is  fubject  to  the  coercion  of  laws  is 
neceffarily  dependent  on  that  power  by  whom  thofe  laws  were 
made  :  but  an  embaflador  ought  to  be  independent  of  every  power, 
except  that  by  which  he  is  fent;  and  of  confequence  ought  not  to 
be  fubjecl:  to  the  mere  municipal  laws  of  that  nation,  wherein  he 
is  to  exercife  his  functions.  If  he  groflly  offends,  or  makes  an  ill 
ufe  of  his  character,  he  may  be  fent  home  and  accufed  before 
his  mailer  h;  who  is  bound  either  to  do  juftiee  upon  him,  or  avow 
himfelf  the  accomplice  of  his  crimes '.  But  there  is  great  dif- 
pute  among  the  writers  on  the  laws  of  nations,  whether  this  ex- 
emption of  embafladors  extends  to  all  crimes,  as  well  natural  as- 
pofltive  ;  or  whether  it  only  extends  to  fuch  as  are  mala  prohibited 
as  coining,  and  not  to  thofe  that  are  mala  infe,  as  murder  k.  Our 
law  feems  to  have  formerly  taken  in  the  reftriction,,  as  well  as  the 

h  As  was  done  with  count  Gyllenberg  k  Van  Laeuwen  in  Ff.  50.  7. 17.  Barbey- 
the  Swedi/h  minifler  to  Great  Britain,  rac's  Puff.  /.  8.  c.  9.  §.  9.  &  17.  Van Byn- 
A.  D.  1716.  kerfhoek  de  faro  legaler.  c.  17,  1 8,  19. 

'  Sp.  L.  26. ,21. 

gen^cal 


254  3%e    RIGHTS  BOOK  I. 

general  exemption.  For  it  has  been  held,  both  by  our  common 
lawyers  and  civilians  ',  that  an  embaffador  is  privileged  by  the  law 
of  nature  and  nations ;  and  yet,  if  he  commits  any  offence  againfl 
the  law  of  reafon  and  nature,  he  fhall  loie  his  privilege  m  :  and 
that  therefore,  if  an  embaffador  conipires  the  death  of  the  king 
in  whole  land  he  is,  he  may  be  condemned  and  executed  for  trea- 
fon;  but  if  he  commits  any  other  fpecies  of  treafon,  it  is  other- 
wife,  and  he  muft  be  fent  to  his  own  kingdom  ".  And  thefe  po- 
fitions  feem  to  be  built  upon  good  appearance  of  reafon.  For 
fince,  as  we  have  formerly  fhewn,  all  municipal  laws  a<fl  in  fub- 
ordination  to  the  primary  law  of  nature,  and,  where  they  annex 
a  puniihment  to  natural  crimes,  are  only  declaratory  .of  and 
auxiliary  to  that  law;  therefore  to  this  natural,  univerfal  rule 
of  juftice  embaffadors,  as  well  as  other  men,  are  fubject  in  all 
countries  j  and  of  confequence  it  is  reafonable  that,  wherever  they 
tranfgrefs  it,  there  they  (hall  be  liable  to  make  atonement  °.  But, 
however  thefe  principles  might  formerly  obtain,  the  general 
practice  of  this  country,  as  well  as  of  the  reft  of  Europe,  feems 
now  to  purfue  the  fentiments  of  the  learned  Grotius,  that  the 
fecurity  of  embaffadors  is  of  more  importance  than  the  punim- 
ment of  a  particular  crime  p.  And  therefore  few,  if  any,  examples 
have  happened  within  a  century  paft,  where  an  embaffador  has 
been  punifhed  for  any  offence,  however  atrocious  in  it's  nature. 

IN  refpect  to  civil  fuits,  all  the  foreign  jurifts  agree,  that  nei- 
ther an  embaffador,  nor  any  of  his  train  or  comites,  can  be  profe- 
cuted  for  any  debt  or  contract  in  the  courts  of  that  kingdom 
wherein  he  is  fent  to  refide.  Yet  fir  Edward  Coke  maintains, 
that,  if  an  embaffador  make  a  contract  which  is  good  jure  gentium, 
he  mail  anfwer  for  it  hereq.  But  the  truth  is,  fo  few  cafes  (if 
any)  had  arifen,  wherein  the  privilege  was  either  claimed  or  dif- 
puted,  even  with  regard  to  civil  fuits,  that  our  law-books  are 

1    I  Roll.  Rep.  175.     3  Bulftr.  27.  P  Securitas  Icgatorum  utilitati  quae  ex poena 

m  4  Inft.  153.  eft  praepanderat.    de  jure  b.  13  p.  18.  4.  4. 
n   i  R  11.  Rep.  185.  i  4  Inft.  153. 

0  Potter's  reports.  188. 

filent 


Ch.  7.  </PERSONS.  255 

filent  upon  it,  previous  to  the  reign  of  queen  Annej   when  an 
embaffador  from  Peter  the  great,  czar  of  Mufcovy,  was  actually 
arrefted  and  taken  out  of  his  coach  in  London  r,  for  a  debt  of 
fifty  pounds,  which  he  had  there  contracted.     Inftead  of  apply- 
ing to  be  difcharged  upon  his  privilege,  he   gave  bail  to  the  ac- 
tion, and  the  next  day  complained  to  the  queen.     The  perfons 
who  were  concerned  in  the  arreft  were  examined  before  the  privy 
council   (of  which  the  lord  chief  j'uftice  Holt  was  at  the  lame 
time  fworn  a  member5)  and  feventeen  were  committed  to  prifon  ' : 
molt  of  whom  were  profecuted  by  information  in  the  court  of 
queen's  bench,  at  the  fuit  of  the  attorney  general u,  and  at  their 
trial  before  the  lord  chief  juftice  were  convicted  of  the  facts  by 
the  jury  w ;   referving  the  queftion  of  law,  how  far  thofe  facts 
were  criminal,  to  be  afterwards  argued  before  the  judges;   which 
queftion  was  never  determined.     In  the  mean  time  the  czar  re- 
fented  this  affront  very  highly,  and  demanded  that  the  fherifF  of 
Middlefex  and  all  others  concerned  in  the  arreft  mould  be  punifli- 
ed  with  inftant  death  x.  But  the  queen  (to  the  amazement  of  that 
defpotic  court)  directed  her  fecretary  to  inform  him,  "  that  fhe 
"  could  inflict  no  punimment  upon  any,  the  meaneft,  of  her  fub- 
"jects  unlefs  warranted  by  the  law  of  the  land,  and  therefore 
"  was  perfuaded  that  he  would  not  iniift  upon  impombilities  V 
To  fatisfy  however  the  clamours  of  the  foreign  minifters   (who 
made  it  a  common  caufe)  as  well  as  to  appeafe  the  wrath  of  Pe- 
ter, a  bill  was  brought  into  parliament z,  and  afterwards  paffed 
into  a  law  a,   to  prevent  and  to  puniili  fuch  outrageous  infolence 
for  the  future.    And  with  a  copy  of  this  act,  elegantly  engrofled 
and  illuminated,    accompanied  by  a  letter  from  the  queen,   an 
embaffador  extraordinary  b  was  commiffioned  to  appear  at  Mof- 
cowc,   who  declared,    "that  though  her  majefty  could  not  in- 

r  21  July  1708.    Boyer's  annals  of  queen         Y  n  Jan.  1708.     Ibid.     Mod.  Un.  Hift. 

Anne.  xxxv.  454. 

3   25  July  1708.     Ibid.  z  Com.  Journ.                  .   1708. 

'   25,  29  Jul.  1708.     Ibid.  a  21  Apr.  1709.     Boyer,  ibid. 

u  23  Oft.  1708.     Hid.  b  Mr  Whitworth. 

w   1 4  Feb.  1708.    Ibid.  c  8  Jan.  1709.    Boyer,  ibid. 
x   17  Sept.  1708.    Ibid. 

"rlidt 


256  T?je    RIGHTS  BOOK  I, 

*«  flicl:  fuch  a  punimment  as  was  required,  becaufe  of  the  defeat 
c<  in  that  particular  of  the  former  eftablifhed  conftitutions  of  her 
«'  kingdom,  yet,  with  the  unanimous  confent  of  the  parliament, 
"  fhe  had  caufed  a  new  act  to  be  pafled,  to  ferve  as  a  law  for  the 
«'  future."  This  humiliating  ftep  was  accepted  as  a  full  fatisfac- 
tion  by  the  czar;  and  the  offenders,  at  his  requeft,  were  dif- 
charged  from  all  farther  profecution. 

THIS  ftatute  d  recites  the  arrefl  which  had  been  made,  "  in 
«« contempt  of  the  protection  granted  by  her  majefty,  contrary  to 
"  the  law  of  nations,  and  in  prejudice  of  the  rights  and  privi- 
'« leges,  which  embafTadors  and  other  public  minifters  have  at  all 
«( times  been  thereby  poflefled  of,  and  ought  to  be  kept  facred 
"and  inviolable:"  wherefore  it  enacts,  that  for  the  future  all 
procefs  whereby  the  perfon  of  any  embaflador,  or  of  his  domeftic 
or  domeftic  fervant,  may  be  arrefted,  or  his  goods  diftreined  or 
feifed,  {hall  be  utterly  null  and  void  ;  and  the  perfons  profecuting, 
foliciting,  or  executing  fuch  procefs  fhall  be  deemed  violaters  of 
the  law  of  nations,  and  difturbers  of  the  public  repofe ;  and  fhall 
fuffer  fuch  penalties  and  corporal  punilhments  as  the  lord  chan- 
cellor and  the  two  chief  juftices,  or  any  two  of  them,  {hall  think 
fit.  But  it  is  expreffly  provided,  that  no  trader,  within  the  de- 
fcription  of  the  bankrupt  laws,  who  fhall  be  in  the  fervice  of  any 
embaflador,  {hall  be  privileged  or  protected  by  this  adt ;  nor  fhall 
any  one  be  punifhed  for  arrefting  an  embafTador's  fervant,  unlefs 
his  name  be  regiftred  with  the  fecretary  of  ftate,  and  by  him 
tranfmitted  to  the  fheriffs  of  London  and  Middlefex.  Excep- 
tions, that  are  ftridly  conformable  to  the  rights  of  embafTadors  % 
as  obferved  in  the  molt  civilized  countries.  And,  in  confequence 
of  this  ftatute,  thus  declaring  and  enforcing  the  law  of  nations, 

*  7  Ann     c   12.  nan  pertinere,    qui  in  legati  legal ionif-ve  officio 

*  Saepe  quae':ium  ejl  an  comitum  numero  et  nonfunt.    Quum  autem  ea  res  nonnvnquam  tur- 
jure  habendi  junt,  qui  kgatum  comitantur,   >itn  bas  dederlt,  tptimo  exemf/o  in  pntufiam  aulis 
ut  inftruQior  fiat  hgtitio,  fed  unice  ut  luero  fuo  dim  recepttm  fuit,  ut  legatus  teneretur  exhiiere 
confidant,    injlitoret  forte  et    mcrcatores.     Et,  ncme/ic/aturam   ccmitum  fuonim.     Van   Byn- 
quamiiis  bos  facpe  defenderint  et  comitum  loco  kerfh.    f .  I  5 .   prope  fnem. 

babere  -volaerint  legati,  afparet  tamen  fatis  ea 

thefe 


Ch.  7.  of    PERSONS.  257 

thefe  privileges  are  now  held  to  be  part  of  the  law  of  the  land, 
and  are  conftantly  allowed  in  the  courts  of  common  law f. 

II.  IT  is  alfo  the  king's  prerogative  to  make  treaties,  leagues, 
and  alliances  with  foreign  ftates  and  princes.    For  it  is  by  the  law 
of  nations  eflential  to  the  goodnefs  of  a  league,  that  it  be  made  by 
the  fovereign  power g;    and   then  it  is  binding  upon  the  whole 
community  :    and  in  England  the  fovereign  power,  quoad  hoc,  is 
verted  in  the  perfon  of  the  king.  Whatever  contrails  therefore  he 
engages  in,  no  other  power  in  the  kingdom  can  legally  delay,  refift, 
or  annul.  And  yet,  left  this  plenitude  of  authority  mould  be  abufed 
to  the  detriment  of  the  public,  the  conflitution  (as  was  hinted  be- 
fore) hath  here  interpofed  a  check,  by  the  means  of  parliamentary 
impeachment,  for  the  punifhment  of  fuch  minifters  as  from  cri- 
minal motives  advife  or  conclude  any  treaty,  which  mall  afterwards 
be  judged  to  derogate  from  the  honour  and  interefl  ef  the  nation. 

III.  UPON  the  fame  principle  the  king  has  alfo  the  fole  pre- 
rogative of  making  war  and  peace.    For  it  is  held  by  all  the  wri- 
ters on  the  law  of  nature  and  nations,  that  the  right  of  making 
war,  which  by  nature  fubfifted  in  every  individual,  is  given  up 
by  all  private  perfons  that  enter  into  fociety,  and  is  vefted  in  the 
fovereign  power  h :  and  this  right  is  given  up  not  only  by  indivi- 
duals, but  even  by  the  intire  body  of  people,  that  are  under  the 
dominion  of  a  fovereign.  It  would  indeed  be  extremely  improper, 
that  any  number  of  fubjects  mould  have  the  power  of  binding  the 
fupreme  magiftrate,  and  putting  him  againft  his  will  in  a  ftate  of 
war.    Whatever  hoftilities  therefore  may  be  committed  by  private 
citizens,  the  ftate  ought  not  to  be  affedled  thereby  j   unlefs  that 
mould  juftify  their  proceedings,  and  thereby  become  partner  in 
the  guilt.  Such  unauthorized  voluntiers  in  violence  are  not  ranked 
among  open  enemies,  but  are  treated  like  pirates  and  robbers : 
according  to  that  rule  of  the  civil  law ' ;   hojhs  hi  funt  qid  nobis, 
aut  quibus  nos,  publice  bellwn  decrevwnis :   caeteri  /af  rones  aut  prae- 

f  Fitzg.  200.    Stra.  797.  h  Puff.  b.8.  c.  6.  §.8.  and  Barbeyr.  in  lac. 

«  Puff.  L.  of  N.  b.  8.  e.g.  §.6,  *  Ff.  50.  16.  118. 

I  i  dones 


258  The    RIGHTS  BOOK!. 

dories  funt.  And  the  reaib'n  which  is  given  by  Grotius  k,  why  ac- 
cording to  the  law  of  nations  a  denunciation  of  war  ought  always 
to  precede  the  actual  commencement  of  hoftilities,  is  not  fo  much 
that  the  enemy  may  be  put  upon  his  guard,  (which  is  matter  ra- 
ther of  magnanimity  than  right)  but  that  it  may  be  certainly  clear 
that  the  war  is  not  undertaken  by  private  perlbns,  but  by  the  will 
of  the  whole  community;  whole  right  of  willing  is  in  this  cafe 
transferred  to  the  fupreme  magiflrate  by  the  fundamental  laws  of 
fociety.  So  that,  in  order  to  make  a  war  completely  effectual,  it 
is  neceffary  with  us  in  England  that  it  be  publicly  declared  and 
duly  proclaimed  by  the  king's  authority ;  and,  then,  all  parts  of 
both  the  contending  nations,  from  the  higheft  to  the  loweft,  are 
bound  by  it.  And  wherever  the  right  refides  of  beginning  a  na- 
tional war,  there  alfo  muft  refide  the  right  of  ending  it,  or  the 
power  of  making  peace.  And  the  fame  check  of  parliamentary 
impeachment,  for  improper  or  inglorious  conduct,  in  beginning, 
conducting,  or  concluding  a  national  war,  is  in  general  fufficient 
to  reftrain  the  minifters  of  the  crown  from  a  wanton  or  injurious 
exertion  of  this  great  prerogative. 

IV.  BUT,  as  the  delay  of  making  war  may  fometimes  be  detri- 
mental to  individuals  who  have  fuffered  by  depredations  from  fo- 
reign potentates,  our  laws  have  in  fome  refpect  armed  the  fubject 
with  powers  to  impel  the  prerogative ;  by  directing  the  minifters 
of  the  crown  to  iflue  letters  of  marque  and  reprifal  upon  due 
demand :  the  prerogative  of  granting  which  is  nearly  related  to, 
and  plainly  derived  from,  that  other  of  making  war ;  this  being 
indeed  only  an  incomplete  ftate  of  hoftilities,  and  generally  end- 
ing in  a  formal  denunciation  of  war.  Thefe  letters  are  grantable 
by  the  law  of  nations ',  whenever  the  fubjects  of  one  ftate  are 
oppreffed  and  injured  by  thole  of  another;  and  juftice  is  denied 
by  that  ftate  to  which  the  opprerTor  belongs.  In  this  cafe  letters 
of  marque  and  reprifal  (words  in  themfelves  fynonymous  and  iig- 
nifying  a  taking  in  return)  may  be  obtained,  in  order  to  feife  the 
bodies  or  goods  of  the  fubjects  of  the  offending  ftate,  until  fatis- 

k  dejur.  b.  &  p.  1.  3.  c.  3.  §.  1 1.  '  Ibid..  I.  3.  c.  z.  §.  4  &  5. 

factioa 


Ch.  7.  of    PERSONS.  259 

faction  be  made,  wherever  they  happen  to  be  found.  And  indeed 
this  cuftom  of  reprifals  feems  dictated  by  nature  herfelf ;  for  which 
reafon  we  find  in  the  mod  antient  times  very  notable  inflances  of 
it m.  But  here  the  necefllty  is  obvious  of  calling  in  the  fovereign 
power,  to  determine  when  reprifals  may  be  made;  elfe  every 
private  fufFerer  would  be  a  judge  in  his  own  caufe.  In  pur- 
fuance  of  which  principle,  it  is  with  us  declared  by  the  ftatute 
4-Hen.V.  0.7.  that,  if  any  fubjects  of  the  realm  are  opprefled  in 
time  of  truce  by  any  foreigners,  the  king  will  grant  marque  in  due 
form,  to  all  that  feel  themfelves  grieved.  Which  form  is  thus 
directed  to  be  obferved :  the  fufFerer  muft  firfl  apply  to  the  lord 
privy-feal,  and  he  fhall  make  out  letters  of  requeft  under  the  privy 
feal ;  and,  if,  after  fuch  requeft  of  fatisfaction  made,  the  party 
required  do  not  within  convenient  time  make  due  fatisfaction  or 
reftitution  to  the  party  grieved,  the  lord  chancellor  (hall  make 
him  out  letters  of  marque  under  the  great  feal ;  and  by  virtue  of 
thefe  he  may  attack  and  feife  the  property  of  the  aggreflbr  nation, 
without  hazard  of  being  condemned  as  a  robber  or  pirate. 

V.  UPON  exactly  the  fame  reafon  ftands  the  prerogative  of 
granting  fafe-condudts,  without  which  by  the  law  of  nations  no 
member  of  one  fociety  has  a  right  to  intrude  into  another.  And 
therefore  Puffendorf  very  juftly  refolves  n,  that  it  is  left  in  the 
power  of  all  ftates,  to  take  fuch  meafures  about  the  admiffion  of 
ftrangers,  as  they  think  convenient  j  thofe  being  ever  excepted 
who  are  driven  on  the  coafts  by  neceffity,  or  by  any  caufe  that 
deferves  pity  or  companion.  Great  tendernefs  is  fhewn  by  our 
laws,  not  only  to  foreigners  in  diftrefs  (as  will  appear  when  we 
come  to  fpeak  of  fhipwrecks)  but  with  regard  alfo  to  the  admif- 
fion of  ftrangers  who  come  ipontaneoufly.  For  fo  long  as  their 
nation  continues  at  peace  with  ours,  and  they  themfelves  behave 

m  See  the  account  given  by  Neftor,  in  the  due  to  many  private  fubjefts  of  the  Pylian 

eleventh  book  of  the  Iliad,  of  the  reprifals  kingdom  :    out  of  which   booty  the   king 

made    by  himfelf  on    the  Epeian  nation  ;  took   three  hundred   head  of  cattle  for  his 

from  whom   he  took  a  multitude  of  cattle,  own  demand,  and  the  reft  were  equitably 

as  afatisfaftion  for  a  prize  won  at  the  Elian  divided  among  the  other  creditors, 
games  by  his  father  Neleus,  and  for  debts         n  Law  of  N.  and  N.   b.  3.  c.  3.  §.9. 

I  i  2  peaceably, 


2 6o  The    RIGHTS  BOOK!. 

peaceably,  they  are  under  the  king's  protection  ;  though  liable  to 
be  fent  home  whenever  the  king  fees  occafion.  But  no  fubject  of 
a  nation  at  war  with  us  can,  by  the  law  of  nations,  come  into 
the  realm,  nor  can  travel  himfelf  upon  the  high  feas,  or  fend  his 
goods  and  merchandize  from  one  place  to  another,  without  dan- 
ger of  being  feifed  by  our  fubjects,  unlefs  he  has  letters  of  fafe- 
conduct;  which  by  divers  antient  ftatutes  °  mutt  be  granted  under 
the  king's  great  feal  and  inrolled  in  chancery,  or  elfe  are  of  no 
effect :  the  king  being  fuppoied  the  beft  judge  of  fuch  emer- 
gencies, as  may  deferve  exception  from  the  general  law  of  arms. 
But  paffports  under  the  king's  fign-manual,  or  licences  from  his 
embafTadors  abroad,  are  now  more  ufually  obtained,  and  are  al- 
lowed to  be  of  equal  validity. 

INDEED  the  law  of  England,  as  a  commercial  country,  pays 
a  very  particular  regard  to  foreign  merchants  in  innumerable  in- 
flances.  One  I  cannot  omit  to  mention  :  that  by  magna,  carta  p  it 
is  provided,  that  all  merchants  (unlefs  publicly  prohibited  before- 
hand) fhall  have  fafe  conduct  to  depart  from,  to  come  into,  to 
tarry  in,  and  to  go  through  England,  for  the  exercife  of  mer- 
chandize, without  any  unreafonable  imports,  except  in  time  of 
war  :  and,  if  a  war  breaks  out  between  us  and  their  country, 
they  (hall  be  attached  (if  in  England)  without  harm  of  body  or 
goods,  till  the  king  or  his  chiejf  justiciary  be  informed  how  our 
merchants  are  treated  in  the  land  with  which  we  are  at  war;  and, 
if  ours  be  fecure  in  that  land,  they  mail  be  fecure  in  ours.  This 
feems  to  have  been  a  common  rule  of  equity  among  all  the  nor- 
thern nations;  for  we  learn  from  Stiernhookq,  that  it  was  a 
maxim  among  the  Goths  and  Swedes,  "  quam  legem  exterl  nobis 
"  pofuere,  eandem  illis  ponemus.'"  But  it  is  fomewhat  extraordinary, 
that  it  mould  have  found  a  place  in  magna  carta,  a  mere  interior 
treaty  between  the  king  and  his  natural-born  fubjects ;  which  oc- 
cafions  the  learned  Montefquieu  to  remark  with  a  degree  of  ad- 
miration, "  that  the  Englim  have  made  the  protection  of  foreign 

"   15  Hen.  VI.    0.3.     1 8  Hen.  VI.    c.  8.         P  c.  30. 
20  Hen.  VI.  c.i.  «  ilt  jure  Sueon.  1.  3.  <•.  4. 

"  merchants 


Ch.  7.  of    PERSONS.  261 

"  merchants  one  of  the  articles  of  their  national  liberty  V  But 
indeed  it  well  juftifies  another  obfervation  which  he  has  made", 
"  that  the  Englifh  know  better  than  any  other  people  upon  earth, 
"  how  to  value  at  the  fame  time  thefe  three  great  advantages,  re- 
"  ligion,  liberty,  and  commerce."  Very  different  from  the  genius 
of  the  Roman  people ;  who  in  their  manners,  their  constitution, 
and  even  in  their  laws,  treated  commerce  as  a  difhonorable  em- 
ployment, and  prohibited  the  exercife  thereof  to  perfons  of  birth, 
or  rank,  or  fortune' :  and  equally  different  from  the  bigotry  of 
the  canonifts,  who  looked  on  trade  as  incontinent  with  chriftia- 
nity  u,  and  determined  at  the  council  of  Melfi,  under  pope  Ur- 
ban II,  A.D.  1090,  that  it  was  impoflible  with  a  fafe  conference 
to  exercife  any  traffic,  or  follow  the  profeflion  of  the  law  w. 

THESE  are  the  principal  prerogatives  of  the  king,  refpecting 
this  nation's  intercourfe  with  foreign  nations;  in  all  of  which  he 
is  confidered  as  the  delegate  or  reprefentative  of  his  people.  But 
in  domefHc  affairs  he  is  confidered  in  a  great  variety  of  characters, 
and  from  thence  there  arifes  an  abundant  number  of  other  pre- 
rogatives. 

I.  FIRST,  he  is  a  conftituent  part  of  the  fupreme  legiflative 
power;  and,  as  fuch,  has  the  prerogative  of  rejecting  fuch  pro- 
vifions  in  parliament,  as  he  judges  improper  to  be  paffed.  Ths 
expediency  of  which  conftitution  has  before  been  evinced  at  lar°-ex. 
I  fhall  only  farther  remark,  that  the  king  is  not  bound  by  any 
act  of  parliament,  unlefs  he  be  named  therein  by  fpecial  and  par- 
ticular words.  The  moil  general  words  that  can  be  devifed  ("any 
"perfon  or  perfons,  bodies  politic,  or  corporate,  &c.")  affect  not 
him  in  the  lead,  if  they  may  tend  to  reftrain  or  diminim  any  of 

'  Sp.   L.  20.  13.  mercator;    au  t  fi  I'oluerit  efle,   projidatur  d? 

5  Ibid.  20.  6.  eccle/ia  Dei.    Dect-et.  I.  88.  1 1. 

1  hcbiltires  natalibus,  et  f^norum  luce  c-onfpi-  v  Yalfa  ft  fosnitentia  [laid]  cum  penitus  a!> 

cuos,  et  fatnmonw  tiitiores,  pernUicJum  urkilus  officio  curiali  <vd  aegotiali  >wn  reccdit,  quatjim 

mere imoni urn  exercere  probibemus.   C.  4.  63.  3.  peccatis-  agi  u!la  ratione  not!  praei'aht.     Afi. 

u  Homo  mercater'vix  aut  nunquam-potefi. Deo  Condi,  apud  Baton,  c,  1 6. 

placcre :    et   ideo   nullus   thrift ianus  debet   ej/e  x  ch.  z.  pag.  15^.. 

his- 


262  77j£    RIGHTS  BOOK  I. 

his  rights  or  interests y.  For  it  would  be  of  moil  mifchievous  eon- 
fequence  to  the  public,  if  the  Strength  of  the  executive  power 
were  liable  to  be  curtailed  without  it's  own  exprefs  confent,  by 
constructions  and  implications  of  the  fubject.  Yet  where  an  act 
of  parliament  is  expreSHy  made  for  the  prefervation  of  public  rights 
and  the  lupprefiion  of  public  wrongs,  and  does  not  interfere  with 
the  eStabliihed  rights  of  the  crown,  it  is  laid  to  be  binding  as 
well  upon  the  king  as  upon  the  fubject z :  and,  likewife,  the  king 
may  take  the  benefit  of  any  particular  act,  though  he  be  not  ef- 
pecially  named  a. 

II.  THE  king  is  confidered,  in  the  next  place,  as  the  general- 
iflimo,  or  the  firfh  in  military  command,  within  the  kingdom. 
The  great  end  of  fociety  is  to  protect  the  weaknefs  of  individuals 
by  the  united  Strength  of  the  community  :  and  the  principal  ufe 
of  government  is  to  direct  that  united  Strength  in  the  beSt  and 
moSt  effectual  manner,  to  anfwer  the  end  propofed.  Monarchical 
government  is  allowed  to  be  the  fitteSt  of  any  for  this  purpofe  : 
it  follows  therefore,  from  the  very  end  of  it's  institution,  that  in 
a  monarchy  the  military  power  muSt  be  truSted  in  the  hands  of 
the  prince. 

IN  this  capacity  therefore,  of  general  of  the  kingdom,  the 
king  has  the  fole  power  of  raifing  and  regulating  fleets  and  armies. 
Of  the  manner  in  which  they  are  raifed  and  regulated  I  Shall 
fpeak  more,  when  I  come  to  confider  the  military  State.  We  are 
now  only  to  confider  the  prerogative  of  enliSting  and  of  govern- 
ing them  :  which  indeed  was  disputed  and  claimed,  contrary  to 
all  reafon  and  precedent,  by  the  long  parliament  of  king  Charles  Ij 
but,  upon  the  restoration  of  his  fon,  was  Solemnly  declared  by 
the  Statute  13  Car.  II.  c.  6.  to  be  in  the  king  alone  :  for  that  the 
fole  Supreme  government  and  command  of  the  militia  within  all 
his  majeSty's  realms  and  dominions,  and  of  all  forces  by  fea  and 
land,  and  of  all  forts  and  places  of  Strength,  ever  was  and  is  the 

*   ii  Rep.  74.  a  7  Rep.  32. 

z  Ibid.  71. 

undoubted 


Ch.  7.  ^PERSONS.  263 

undoubted  right  of  his  majefty,  and  his  royal  predcceflbrs,  kings 
and  queens  of  England  j  and  that  both  or  either  houfe  of  parlia- 
ment cannot,  nor  ought  to,  pretend  to  the  fame. 

THIS  ftatute,  it  is  obvious  to  obferve,  extends  not  only  to 
fleets  and  armies,   but  alfo  to  forts,  and  other  places  of  ftrength, 
within  the  realm  ;    the  fole  prerogative,  as  well  of  erecting,  as 
manning  and  governing  of  which,  belongs  to  the  king  in  his  ca- 
pacity of  general  of  the  kingdom  b  :    and  all  lands  were  formerly 
fubjecl  to  a  tax,  for  building  of  caftles  wherever  the  king  thought 
proper.    This  was  one  of  the  three  things,  from  contributing  to 
the  performance  of  which  no  lands  were  exempted  ;    and  there- 
fore called  by  our  Saxon  ancestors  the  trinoda  necejjitas  :  fc.  pontis 
reparatio,  arcis  conjlruclio,  et  expeditio  contra  hojlem  c.     And  this 
they  were  called  upon  to  do  fo  often,  that,  as  fir  Edward  Coke 
from  M.  Paris  allures  us  d,  there  were  in  the  time  of  Henry  II 
1115  caftles  fubfifting  in  England.    The  inconvenience  of  which, 
when  granted  out  to  private  fubjeds,  the  lordly  barons  of  thofe 
times,  was  feverely  felt  by  the  whole  kingdom  ;  for,  as  William 
of  Newbridge  remarks  in  the  reign  of  king  Stephen,   "  erant.in 
"  Anglia  quodammodo  tot  reges  vet  potius  tyranni,  quot  domini  caftel- 
"  lorum:"   but  it  was  felt  by  none  more  fenfibly  than  by  two 
fucceeding  princes,  king  John  and  king  Henry  III.    And  there- 
fore, the  greateft  part  of  them  being  demolifhed  in  the  barons' 
wars,  the  kings  of  after  times  have  been  very  cautious  of  fuffer- 
ing  them  to  be  rebuilt  in  a  fortified  manner  :  and  fir  Edward  Coke 
lays  it  down%  that  no  fubjec~l  can  build  a  caftle,  or  houfe  of 
ftrength  imbatteled,  or  other  fortrefs  defenfible,  without  the  li- 
cence of  the  king  ;   for  the  danger  which  might  enfue,  if  every 
man  at  his  pleafure  might  do  it. 

I  T  is  partly  upon  the  fame,  and  partly  upon  a  fifcal  founda- 
tion, to  fecure  his  marine  revenue,  that  the  king  has  the  prero- 


b   2  Inft.  30.  d   2  Lift.  31 

c   Cowel's  interpr.  tit.  cajlslhrum  operatic.         e   I  Inft.  5. 
Seld.  Jan.  A,:gl.  \.\z. 


b   2  Inft.  30.  d    2  Lift.  31. 

, 

gative 


264. 


The    RIGHTS 


BOOK  I. 


gative  of  appointing  ports  and  havens,  or  fuch  places  only,  for 
perfons  and  merchandize  to  pafs  into  and  out  of  the  realm,  as  he 
in  his  wifdom  fees  proper.  By  the  feodal  law  all  navigable  rivers 
and  havens  were  computed  among  the  regalia*,  and  were  fubjed: 
to  the  fovereign  of  the  ftate.  And  in  England  it  hath  always 
been  held,  that  the  king  is  lord  of  the  whole  more E,  and  parti- 
cularly is  the  guardian  of  the  ports  and  havens,  which  are  the 
inlets  and  gates  of  the  realm11:  and  therefore,  fo  early  as  the 
reign  of  king  John,  we  find  (hips  feifed  by  the  king's  officers  for 
putting  in  at  a  place  that  was  not  a  legal  port '.  Thefe  legal  ports 
were  undoubtedly  at  firft  afligned  by  the  crown ;  fmce  to  each 
of  them  a  court  of  portmote  is  incident14,  the  jurifdidtion  of  which 
muft  flow  from  the  royal  authority  :  the  great  ports  of  the  fee 
are  alfo  referred  to,  as  well  known  and  eftabliihed,  by  ilatute 
4  Hen.  IV.  c.  20.  which  prohibits  the  landing  elfewhere  under 
pain  of  confifcation  :  and  the  ftatute  i  Eliz.  c.  1 1 .  recites  that 
the  franchife  of  lading  and  difcharging  had  been  frequently 
granted  by  the  crown. 

BUT  though  the  king  had  a  power  of  granting  the  franchife 
of  havens  and  ports,  yet  he  had  not  the  power  of  refumption,  or 
of  narrowing  and  confining  their  limits  when  once  eftablimed ; 
but  any  perfon  had  a  right  to  load  or  difcharge  his  merchandize 
in  any  part  of  the  haven :  whereby  the  revenue  of  the  cuftoms 
was  much  impaired  and  diminimed,  by  fraudulent  landings  in 
obfcure  and  private  corners.  This  occafioned  the  ftatutes  of  i  Eliz. 
c.i  i.  and  13  &  i4.Car.  II.  c.u.  §.14.  which  enable  the  crown 
by  commiffion  to  afcertain  the  limits  of  all  ports,  and  to  aflign 
proper  wharfs  and  quays  in  each  port,  for  the  exdufive  landing 
and  loading  of  merchandize. 

THE  eredion  of  beacons,  light-houfes,  and  fea-marks,  is  alfo 
a  branch  of  the  royal  prerogative  :  whereof  the  firfl  was  antiently 


f  2  Feud.  t.  56. 
s  F.N.B.  113. 
h  Dav.  9.  56. 


Crag.  1.15    15. 


'  Madox  hift.  exch.  530. 
k  4  Inft.  148. 


ufed 


Ch.  7.  <?/*    PERSONS.  265 

ufed  in  order  to  alarm  the  country,  in  cafe  of  the  approach  of 
an  enemy ;  and  all  of  them  are  fignally  ufeful  in  guiding  and 
preferving  veflels  at  fea  by  night  as  well  as  by  day.  For  this  pur- 
pofe  the  king  hath  the  exclufive  power,  by  commiffion  under  his 
great  feal l,  to  caufe  them  to  be  creeled  in  fit  and  convenient 
places"1,  as  well  upon  the  lands  of  the  fubjedr.  as  upon  the  de- 
mefnes  of  the  crown  :  which  power  is  ufually  veiled  by  letters 
patent  in  the  office  of  lord  high  admiral n.  And  by  ftatute  8  Eliz. 
c.  13.  the  corporation  of  the  trinity-houfe  are  impowered  to  fet 
up  any  beacons  or  fea-marks  wherever  they  fhall  think  them  ne- 
cefTary ;  and  if  the  owner  of  the  land  or  any  other  perfon  fhall 
deirroy  them,  or  mall  take  down  any  fteeple,  tree,  or  other  known 
fea-mark,  he  (hall  forfeit  ioo/.  or,  in  cafe  of  inability  to  pay  it, 
fhall  be  ipfofaSlo  outlawed. 

To  this  branch  of  the  prerogative  may  alfo  be  referred  the 
power  verted  in  his  majefty,  by  ftatutes  12  Car.  II.  c.  4.  and 
29  Geo.  II.  c.  1 6.  of  prohibiting  the  exportation  of  arms  or  am- 
munition out  of  this  kingdom,  under  fevere  penalties  :  and  like- 
wife  the  right  which  the  king  has,  whenever  he  fees  proper,  of 
confining  his  fubjects  to  flay  within  the  realm,  or  of  recalling 
them  when  beyond  the  feas.  By  the  common  law  °,  every  man 
may  go  out  of  the  realm  for  whatever  caufe  he  pleafeth,  without 
obtaining  the  king's  leave;  provided  he  is  under  no  injunction  of 
flaying  at  home:  (which  liberty  was  expreffly  declared  in  king 
John's  great  charter,  though  left  out  in  that  of  Henry  III)  but, 
becaufe  that  every  man  ought  of  right  to  defend  the  king  and  his 
realm,  therefore  the  king  at  his  pleafure  may  command  him  by  his 
writ  that  he  go  not  beyond  the  feas,  or  out  of  the  realm,  without 
licence ;  and  if  he  do  the  contrary,  he  fhall  be  punifhed  for  dif- 
obeying  the  king's  command.  Some  perfons  there  antiently  were, 
that,  by  reafon  of  their  ftations,  were  under  a  perpetual  prohibi- 
tion of  going  abroad  without  licence  obtained;  among  which  were 

1  3  Inft.  204.     4  Inft.  148.  »   i  Sid.  158.     4  Inft.  149. 

m  Rot.  Clatif.  I  Rie.II.  m,  42.     Pryn.  on         «  F.N.  B.  85. 
4  Inft.  136. 

K  k  reckoned 


266  7/js    RIGHTS  BOOK!. 

reckoned  all  peers,  on  account  of  their  being  counfellors  of  the 
crown;  all  knights,  who  were  bound  to  defend  the  kingdom 
from  invafions ;  all  ecclefiaftics,  who  were  expreflly  confined  by 
cap.  4.  of  the  conftitutions  of  Clarendon,  on  account  of  their 
attachment  in  the  times  of  popery  to  the  fee  of  Rome;  all  ar- 
chers and  other  artificers,  left  they  fhould  inftrudt  foreigners  to 
rival  us  in  their  feveral  trades  and  manufactures.  This  was  law  in 
the  times  of  Brittonp,  who  wrote  in  the  reign  of  Edward  I:  and 
fir  Edward  Coke q  gives  us  many  inftances  to  this  effecl  in  the 
time  of  Edward  III.  In  the  fucceeding  reign  the  affair  of  tra- 
velling wore  a  very  different  afpe£t :  an  act  of  parliament  being 
made r,  forbidding  all  perfons  whatever  to  go  abroad  without  li- 
cence •,  except  only  the  lords  and  other  great  men  of  the  realm ;. 
and  true  and  notable  merchants ;  and  the  king's  foldiers.  But 
this  ad:  was  repealed  by  the  ftatute  4  Jac.  I.  c.  I.  And  at  prefent 
every  body  has,  or  at  leaft  aflumes,  the  liberty  of  going  abroad 
when  he  pleafes.  Yet  undoubtedly  if  the  king,  by  writ  of  ne 
exeat  regnum,  under  his  great  feal  or  privy  feal,  thinks  proper  to 
prohibit  him  from  fo  doing ;  or  if  the  king  fends  a  writ  to  any 
man,  when  abroad,  commanding  his  return;  and  in  either  cafe 
the  fubjedl  difobeys ;  it  is  a  high  contempt  of  the  king's  prero- 
gative, for  which  the  offender's  lands  mail  be  feifed  till  he  return  i, 
and  then  he  is  liable  to  fine  and  imprifonment8. 

III.  ANOTHER  capacity,  in  which  the  king  is  confidered  in 
domeftic  affairs,  is  as  the  fountain  of  juftice  and  general  confer- 
vator  of  the  peace  of  the  kingdom.  By  the  fountain  of  juftice 
the  law  does  not  mean  the  author  or  original,  but  only  the  diftri- 
butor.  Juftice  is  not  derived  from  the  king,  as  from  his  free  gift  > 
but  he  is  the  fteward  of  the  public,  to  difpenfe  it  to  whom  it  is 
due*.  He  is  not  the  fpring,  but  the  refervoir ;  from  whence  right 
and  equity  are  conducted,  by  a  thoufand  chanels,  to  every  indivi- 
dual. The  original  power  of  judicature,  by  the  fundamental  prin- 

f  c.  123.  »  i  Hawk.  P.  C.  22. 

1  3  Inft.  175.  «  Ad  hoc  autem  creatus  (Jl  et  eleSus,  vt  jnf- 

*  5  Ric.  II.  c.  2.  titiam  facial  univerfo,  Braft.  /.  3.  tr.  r.  t.  9. 

ciples 


Ch.  7.  of   PERSONS.  267 

ciples  of  fociety,  is  lodged  in  the  fociety  at  large  :  but  as  it  would 
be  impracticable  to  render  complete  juftice  to  every  individual, 
by  the  people  in  their  collective  capacity,  therefore  every  nation 
has  committed  that  power  to  certain  feledl  magiftrates,  who  with 
more  eafe  and  expedition  can  hear  and  determine  complaints;  and 
in  England  this  authority  has  immemorially  been  exercifed  by  the 
king  or  his  fubftitutes.  He  therefore  has  alone  the  right  of  erect- 
ing courts  of  judicature :  for,  though  the  conftitution  of  the 
kingdom  hath  entrufted  him  with  the  whole  executive  power  of 
the  laws,  it  is  impoffible,  as  well  as  improper,  that  he  mould 
perfonally  carry  into  execution  this  great  and  extenfive  truft :  it 
is  confequently  neceflary,  that  courts  mould  be  creeled,  to  affift 
him  in  executing  this  power ;  and  equally  neceflary,  that,  if  erec- 
ted, they  mould  be  erected  by  his  authority.  And  hence  it  is, 
that  all  jurifdictions  of  courts  are  either  mediately  or  immediately 
derived  from  the  crown,  their  proceedings  run  generally  in  the 
king's  name,  they  pafs  under  his  feal,  and  are  executed  by  his 
officers. 

I  T  is  probable,  and  almoft  certain,  that  in  very  early  times, 
before  our  conftitution  arrived  at  it's  full  perfection,  our  kings  in 
perfon  often  heard  and  determined  caufes  between  party  and  party. 
But  at  prefent,  by  the  long  and  uniform  ufage  of  many  ages,  our 
kings  have  delegated  their  whole  judicial  power  to  the  judges  of 
their  feveral  courts;  which  are  the  grand  depofitary  of  the  fun- 
damental laws  of  the  kingdom,  and  have  gained  a  known  and 
ftated  jurifdiction,  regulated  by  certain  and  eftablifhed  rules, 
which  the  crown  itfelf  cannot  now  alter  but  by  ad  of  parlia- 
ment u.  And,  in  order  to  maintain  both  the  dignity  and  indepen- 
dence of  the  judges  in  the  fuperior  courts,  it  is  enacted  by  the 
ftatute  1 3  W.  III.  c.  2.  that  their  commiffions  mall  be  made  (not, 
as  formerly,  durante  bene  placito,  but)  quamdiu  bene  fe  gej/ennf, 
and  their  falaries  afcertained  and  eftabliflied ;  but  that  it  may  be 
lawful  to  remove  them  on  the  addrefs  of  both  houfes  of  parlia- 
ment. And  now,  by  the  noble  improvements  of  that  law  in  the 

"  2  Hawk.  P.  C.  2. 

K  k   2  ftatute 


268  The    RIGHTS  BOOK!. 

flatuteof  i  Geo.  III.  c.  23.  enacted  at  the  earnefl  recommendation 
of  the  king  himfelf  from  the  throne,  the  judges  are  continued  in 
their  offices  during  their  good  behaviour,  notwithstanding  any 
demife  of  the  crown  (which  was  formerly  held  w  immediately  to 
vacate  their  feats)  and  their  full  falaries  are  abfolutely  fecured  to 
them  during  the  continuance  of  their  commiffions  :  his  majefty 
having  been  pleafed  to  declare,  that  "  he  looked  upon  the  inde- 
"  pendence  and  uprightnefs  of  the  judges,  as  effential  to  the  im- 
"  partial  adminiftration  of  juftice  j  as  one  of  the  befl  fecurities  of 
"  the  rights  and  liberties  of  his  fubjects ;  and  as  mofl  conducive 
«'  to  the  honour  of  the  crown  V 

I  N  criminal  proceedings,  or  profecutions  for  offences,  it  would 
ftill  be  a  higher  abfurdity,  if  the  king  per  Tonally  fate  in  judg- 
ment ;  becaufe  in  regard  to  thefe  he  appears  in  another  capacity, 
that  of  projecutor.  All  offences  are  either  againft  the  king's  peace, 
or  his  crown  and  dignity  ;  and  are  fo  laid  in  every  indictment. 
For,  though  in  their  confequences  they  generally  feem  (except  iru 
the  cafe  of  treafon  and  a  very  few  others)  to  be  rather  offences 
againfl  the  kingdom  than  the  king  ;  yet,  as  the  public,  which  is 
an  invilible  body,  has  delegated  all  it's  power  and  rights,  with  re- 
gard to  the  execution  of  the  laws,  to  one  vifible  magiftrate,  all 
affronts  to  that  power,  and  breaches  of  thofe  rights,  are  imme- 
diately offences  againft  him,  to  whom  they  are  fo  delegated  by 
the  public.  He  is  therefore  the  proper  perfon  to  profecute  for 
all  public  offences  and  breaches  of  the  peace,  being  the  perfon 
injured  in  the  eye  of  the  law.  And  this  notion  was  carried  fo  far 
in  the  old  Gothic  conftitution,  (wherein  the  king  was  bound  by 
his  coronation  oath  to  conferve  the  peace)  that  in  cafe  of  any  for- 
cible injury  offered  to  the  perfon  of  a  fellow  fubject,  the  offender 
was  accufed  of  a  kind  of  perjury,  in  having  violated  the  king's 
coronation  oath;  dicebaturfregifle  jur amentum regh  juratum*1 .  And 

w  Lord  Raym.  747.  the  mirroar.  c.  I.   §.  5.    And  fa  alfo,  when 

*  Com.  Journ.   3  Mar.  1761.  the  chief  juftice  Thorpe  was  condemned  to 

'  Stiernh.  dejure  Goth.  I.  3.  c.  3.  A  notion  be  hanged  for  bribery,  he  was  fa&facramen- 

fomewhat  fimilar  to  this  may  be  found  in  tum.3miniregisfregij/e,  Rot.Farl.z^EJw.III. 

hence 


Ch.  7.  of    PERSONS.  26g 

hence  alfo  arifes  another  branch  of  the  prerogative,  that  of  par- 
doning offences ;  for  it  is  reafonable  that  he  only  who  is  injured 
fhould  have  the  power  of  forgiving.  Of  profecutions  and  par- 
dons I  mall  treat  more  at  large  hereafter  ;  and  only  mention  them 
here,  in  this  curfory  manner,  to  {hew  the  constitutional  grounds 
of  this  power  of  the  crown,  and  how  regularly  connected  all  the 
links  are  in  this  vail  chain  of  prerogative. 

IN  this  diftincr.  and  feparate  exiftence  of  the  judicial  power, 
in  a  peculiar  body  of  men,  nominated  indeed,  but  not  removeable 
at  pleafure,  by  the  crown,  confifts  one  main  prefervative  of  the 
public  liberty ;  which  cannot  fubfift  long  in  any  ftate,  unlefs  the 
adminiftration  of  common  juftice  be  in  fome  degree  feparated 
both  from  the  legiflative  and  alfo  from  the  executive  power.  Were 
it  joined  with  the  legiflative,  the  life,  liberty,  and  property,  of 
the  fubjedt  would  be  in  the  hands  of  arbitrary  judges,  whofe  de- 
cifions  would  be  then  regulated  only  by  their  own  opinions,  and 
not  by  any  fundamental  principles  of  law  -,  which,  though  legif- 
lators-  may  depart  from,  yet  judges  are  bound  to  obferve.  Were 
it  joined  with  the  executive,  this  union  might  foon  be  an  over- 
ballance  for  the  legiflative.  For  which  reafon,  by  the  ftatute  of 
1 6  Car.  I.  c.  10.  which  abolifhed  the  court  of  ftar  chamber,  ef- 
fedual  care  is  taken  to  remove  all  judicial  power  out  of  the  hands 
of  the  king's  privy  council ;  who,  as  then  was  evident  from  re- 
cent instances,  might.foon  be  inclined  to  pronounce  that  for  law, 
which  was  moft  agreeable  to  the  prince  or  his  officers.  Nothing 
therefore  is  more  to  be  avoided,  in  a  free  constitution,  than  uniting, 
the  provinces  of  a  judge  and  a  minifter  of  ftate.  And  indeed, 
that  the  abfolute  power,  claimed  and  exercifed  in  a  neighbouring, 
nation,  is  more  tolerable  than  that  of  the  eaftern  empires,  is* 
in  great  meafure  owing  to  their  having  verted  the.  judicial  power 
in  their  parliaments,  a  body  feparate  and  diftind:  from  both  the. 
legiflative  and  executive:  and,  if  ever  that  nation  recovers  it's- 
former  liberty,  it  will  owe  it  to  the  efforts  of  thofe  anemblies. . 
In  Turkey,  where  every  thing  is  centered  in  the  fultan  or  his 

minifters, 


270  The    RIGHTS  BOOK!. 

ministers,  defpotic  power  is  in  it's  meridian,  and  wears  a  more 
dreadful  afpect. 

A  CONSEQJJENCE  of  this  prerogative  is  the  legal  ubiquity  of 
the  king.  His  majefty,  in  the  eye  of  the  law,  is  always  preient 
in  all  his  courts,  though  he  cannot  perfonally  diftribute  juftice*. 
Misjudges  are  the  mirror  by  which  the  king's  image  is  reflected. 
It^s  the  regal  office,  and  not  the  royal  perfon,  that  is  always 
prefent  in  court,  always  ready  to  undertake  profecutions,  or  pro- 
nounce judgment,  for  the  benefit  and  protection  of  the  fubject. 
And  from  this  ubiquity  it  follows,  that  the  king  can  never  be 
nonfuit a ;  for  a  nonfuit  is  the  defertion  of  the  fuit  or  action  by 
the  non-appearance  of  the  plaintiff  in  court.  For  the  fame  reafon 
alfo,  in  the  forms  of  legal  proceedings,  the  king  is  not  faid  to 
appear  by  his  attorney,  as  other  men  do ;  for  he  always  appears  in 
contemplation  of  law  in  his  own  proper  perfon  b. 

FROM  the  fame  original,  of  the  king's  being  the  fountain  of 
juflice,  we  may  alfo  deduce  the  prerogative  of  ifluing  proclama- 
tions, which  is  vefted  in  the  king  alone.  Thefe  proclamations 
have  then  a  binding  force,  when  (as  lir  Edward  Coke  obferves0) 
they  are  grounded  upon  and  enforce  the  laws  of  the  realm.  For, 
though  the  making  of  laws  is  intirely  the  work  of  a  diftinct  part, 
the  legiflative  branch,  of  the  fovereign  power,  yet  the  manner, 
time,  and  circumftances  of  putting  thofe  laws  in  execution  muft 
frequently  be  left  to  the  difcretion  of  the  executive  magiftrate. 
And  therefore  his  constitutions  or  edicts,  concerning  thefe  points, 
which  we  call  proclamations,  are  binding  upon  the  fubject,  where 
they  do  not  either  contradict  the  old  laws,  or  tend  to  eftablifh 
new  ones  ;  but  only  enforce  the  execution  of  fuch  laws  as  are 
already  in  being,  in  fuch  manner  as  the  king  fhall  judge  necef- 
fary.  Thus  the  eftabliilied  law  is,  that  the  king  may  prohibit  any 
of  his  fubject s  from  leaving  the  realm  :  a  proclamation  therefore 
forbidding  this  in  general  for  three  weeks,  by  laying  an  embargo 

*  Fortefc.  c.  8.    2  Inft.  186.  b  Finch.  L.8i. 

a  Co.  Litt.  139.  c  3  Inft.  162. 

upon 


Ch.  7.  of   PERSONS.  271 

upon  all  (hipping  in  time  of  ward,  will  be  equally  binding  as  an 
act  of  parliament,  becaufe  founded  upon  a  prior  law.  A  procla- 
mation for  difarming  papifls  is  alfo  binding,  being  only  in  execu- 
tion of  what  the  legislature  has  firft  ordained  :  but  a  proclama- 
tion for  allowing  arms  to  papills,  or  for  difarming  any  proteftant 
fubjects,  will  not  bind;  becaufe  the  firft  would  be  to  affume  a  dif- 
penfing  power,  the  latter  a  legiflative  one ;  to  the  vefting  of  ei- 
ther of  which  in  any  fingle  perfon  the  laws  of  England  are  ab- 
folutely  Grangers.  Indeed  by  the  ftatute  31  Hen. VIII.  c.  8.  it 
was  enacted,  that  the  king's  proclamations  fhould  have  the  force 
of  acts  of  parliament :  a  ftatute,  which  was  calculated  to  intro- 
duce the  moft  defpotic  tyranny;  and  which  mult  have  proved  fa- 
tal to  the  liberties  of  this  kingdom,  had  it  not  been  luckily  re- 
pealed in  the  minority  of  his  fucceflbr,  about  five  years  after e. 

IV.  THE  king  is  likewife  the  fountain  of  honour,  of  office, 
and  of  privilege :  and  this  in  a  different  fenfe  from  that  wherein 
he  is  fliled  the  fountain  of  juftice ;  for  here  he  is  really  the  parent, 
of  them.  It  is  importable  that  government  can  be  maintained 
without  a  due  fubordination  of  rank ;  that  the  people  may  know 
and  diftinguifh  fuch  as  are  fet  over  them,  in  order  to  yield  them 
their  due  refpect  and  obedience;  and  alfo^that  the  officers  them- 
felves,  being  encouraged  by  emulation  and  the  hopes  of  fuperio- 
rity,  may  the  better  difcharge  their  function's  :  and  the  law  fup- 
pofes,  that  no  one  can  be  fo  good  a  judge  of  their  feveral  merits 
and  fer vices,  as  the  king  himfelf  who  employs  them.  It  has  there- 
fore intrufted  with  him  the  fole  power  of  conferring  dignities  and 
honours,  in  confidence  that  he  will  beftow  them  upon  none,  but 
fuch  as  deferve  them.  And  therefore  all  degrees  of  nobility,  of 
knighthood,  arid  other  titles,  are  received  by  immediate  grant 
from  the  crown  :  either  exprefled  in  writing,  by  writs  or  letters 
patent,  as  in  the  creations  of  peers  and  baronets  j  or  by  corporeal 
invefliture,  as  in  the  creation  of  a  fimple  knight. 

*  4Mod.  177/179,  e  Stat.  i  Edw.VT.  c.  12. 

FROM 


272  *Tbe    RIGHTS  BOOK  I. 

FROM  the  fame  principle  alfo  arifes  the  prerogative  of  erect  - 
ing  and  difpofing  of  offices  :  for  honours  and  offices  are  in  their 
nature  convertible  and  fynonymous.  All  offices  under  the  crown 
carry  in  the  eye  of  the  law  an  honour  along  with  them;  becaufe 
they  imply  a  fuperiority  of  parts  and  abilities,  being  fuppofed  to 
be  always  filled  with  thofe  that  are  moll  able  to  execute  them. 
And,  on  the  other  hand,  all  honours  in  their  original  had  duties 
or  offices  annexed  to  them  :  an  earl,  comes,  was  the  confervator 
or  governor  of  a  county ;  and  a  knight,  miles,  was  bound  to  at- 
tend the  king  in  his  wars.  For  the  fame  reafon  therefore  that 
honours  are  in  the  difpofal  of  the  king,  offices  ought  to  be  fo  like- 
wife;  and  as  the  king  may  create  new  titles,  fo  may  he  create  new 
offices  :  but  with  this  refraction,  that  he  cannot  create  new  offi- 
ces with  new  fees  annexed  to  them,  nor  annex  new  fees  to  old 
offices ;  for  this  would  be  a  tax  upon  the  fubjedt,  which  cannot 
be  impofed  but  by  act  of  parliament f.  Wherefore,  in  1 3  Hen.  IV, 
a  new  office  being  created  by  the  king's  letters  patent  for  meafu- 
ring  cloths,  with  a  new  fee  for  the  fame,  the  letters  patent  were, 
on  account  of  the  new  fee,  revoked  and  declared  void  in  parlia- 
ment. 

UPON  the  fame,  or  a  like  reafon,  the  king  has  alfo  the  pre- 
rogative of  conferring  privileges  upon  private  perfons.  Such  as 
granting  place  or  precedence  to  any  of  his  fubjedts,  as  mail  feem 
good  to  his  royal  wifdomg:  or  fuch  as  converting  aliens,  or  per- 
fons born  out  of  the  king's  dominions,  into  denizens  ;  whereby 
fome  very  confiderable  privileges  of  natural-born  fubjedts  are  con- 
ferred upon  them.  Such  alfo  is  the  prerogative  of  erecting  corpo- 
rations ;  whereby  a  number  of  private  perfons  are  united  and  knit 
together,  and  enjoy  many  liberties,  powers,  and  immunities  in 
their  politic  capacity,  which  they  were  utterly  incapable  of  in 
their  natural.  Of  aliens,  denizens,  natural-born,  and  naturalized 
fubjects,  I  fhall  fpeak  more  largely  in  a  fubfequent  chapter  ;  as 
alfo  of  corporations  at  the  clofe  of  this  book  of  our  commentaries. 

f  zlnft.  533.  E  4-Inft.  361. 

I  now 


Gh.  7.  of   PE  R  s  o  N  s.  273 

I  now  only  mention  them  incidentally,  in  order  to  remark  the 
king's  prerogative  of  making  them  ;  which  is  grounded  upon  this 
foundation,  that  the  king,  having  the  fole  adminiflration  of  the 
government  in  his  hands,  is  the  beft  and  the  only  judge,  in  what 
capacities,  with  what  privileges,  and  under  what  diftindlions,  his 
people  are  the  heft  qualified  to  ferve,  and  to  act  under  him.  A 
principle,  which  was  carried  fo  far  by  the  imperial  law,  that  it 
was  determined  to  be  the  crime  of  facrilege,  even  to  doubt 
whether  the  prince  had  appointed  proper  officers  in  the  ftate  h. 

V.  ANOTHER  light  in  which  the  laws  of  England  confider 
the  king  with  regard  to  domeftic  concerns,  is  as  the  arbiter  of 
commerce.  By  commerce,  I  at  prefent  mean  domeftic  commerce 
only.  It  would  lead  me  into  too  large  a  field,  if  I  were  to  attempt 
to  enter  upon  the  nature  of  foreign  trade,  it's  privileges,  regula- 
tions, and  reftriclions ;  and  would  be  alfo  quite  befide  the  pur- 
pofe  of  thefe  commentaries,  which  are  confined  to  the  laws  of 
England.  Whereas  no  municipal  laws  can  be  fufficient  to  order 
and  determine  the  very  extenfive  and  complicated  affairs  of  traffic 
and  merchandize  j  neither  can  they  have  a  proper  authority  for 
this  purpofe.  For  as  thefe  are  tranfactions  carried  on  between 
fubjects  of  independent  ftates,  the  municipal  laws  of  one  will  not 
be  regarded  by  the  other.  For  which  reafon  the  affairs  of  com- 
merce are  regulated  by  a  law  of  their  own,  called  the  law  mer- 
chant or  lex  mercatoria,  which  all  nations  agree  in  and  take  notice 
of.  And  in  particular  it  is  held  to  be  part  of  the  law  of  England, 
which  decides  the  caufes  of  merchants  by  the  general  rules  which 
obtain  in  all  commercial  countries;  and  that  often  even  in  matters 
relating  to  domeftic  trade,  as  for  inftance  with  regard  to  the  draw- 
ing, the  acceptance,  and  the  transfer,  of  inland  bills  of  exchange', 

Wi  T  H  us  in  England,  the  king's  prerogative,  fo  far  as  it  re- 
lates to  mere  domeftic  commerce,  will  fall  principally  under  the 
following  articles. 

b  Dijputare  de  principal!  jitiiicio  non  oportet :    ft,  quern  elegerit  imperator.    C.  9.  29.  3. 
facrilegii  enim  injiar  eft,  dubitare  an  is  dignus         '  Co.  Litt.  172.    Ld  Raym.  181.1  542. 

L  1  Fl RST, 


2 74-  eff)e    RIGHTS  BOOK!. 

FIRST,  the  eftablifliment  of  public  marts,  or  places  of  buy- 
ing and  felling,  fuch  as  markets  and  fairs,  with  the  tolls  there- 
unto belonging.  Thefe  can  only  be  fet  up  by  virtue  of  the  king's 
grant,  or  by  long  and  immemorial  ufage  and  prefcription,  which 
prefuppofes  fuch  a  grant k.  The  limitation  of  thefe  public  reforts, 
to  fuch  time  and  fuch  place  as  may  be  moft  convenient  for  the 
neighbourhood,  forms  a  part  of  ©economics,  or  domeftic  polity -, 
which,  confidering  the  kingdom  as  a  large  family,  and  the  king 
as  the  mafler  of  it,  he  clearly  has  a  right  to  difpofe  and  order  as 
he  pleafes. 

SECONDLY,  the  regulation  of  weights  and  meafures.  Thefe, 
for  the  advantage  of  the  public,  ought  to  be  univerfally  the  fame 
throughout  the  kingdom  ;  being  the  general  criterions  which  re- 
duce all  things  to  the  fame  or  an  equivalent  value.  But,  as  weight 
and  meafure  are  things  in  their  nature  arbitrary  and  uncertain,  it- 
is  therefore  expedient  that  they  be  reduced  to  fome  fixed  rule  or 
flandard  :  which  ftandard  it  is  impoffible  to  fix  by  any  written 
law  or  oral  proclamation ;  for  no  man  can,  by  words  only,  give 
another  an  adequate  idea  of  a  foot-rule,  or  a  pound-weight.  It 
is  therefore  neceffary  to  have  recourfe  to  fome  vifible,  palpable, 
material  flandard ;  by  forming  a  comparifon  with  which,  all 
weights  and  meafures  may  be  reduced  to  one  uniform  fize  :  -and 
the  prerogative  of  fixing  this  ftandard,  our  antient  law  vefted  in 
the  crown  ;  as  in  Normandy  it  belonged  to  the  duke '.  This 
ftandard  was  originally  kept  at  Winchefter  :  and  we  find  in  the 
laws  of  king  Edgar  m,  near  a  century  before  the  conqueft,  an  in- 
junction that  the  one  meafure,  which  was  kept  at  Winchefter, 
fhould  be  obferved  throughout  the  realm.  Moft  nations  have  re- 
gulated the  ftandard  of  meafures  of  length  by  comparifon  with 
the  parts  of  the  human  body  j  as  the  palm,  the  hand,  the  fpan, 
the  foot,  the  cubit,  the  ell,  (ulna,  or  arm)  the  pace,  and  the  fa- 
thom. But,  as  thefe  are  of  different  dimenfions  in  men  of  diffe- 

k  2  Infl.  220.  m  cap.  8. 

1  Cr.  Couflum,  c.  1 6. 

rent 


Ch.  7.  0/"    PERSONS. 

rent  proportions,  our  antient  hiftorians "  inform  us,  that  a  new 
ftandard  of  longitudinal  meafure  was  afcertained  by  king  Henry 
the  firft  j  who  commanded  that  the  ulna  or  antient  ell,  which 
anfwers  to  the  modern  yard,  fliould  be  made  of  the  exadl  length 
of  his  own  arm.  And,  one  ftandard  of  meafures  of  length  being 
gained,  all  others  are  ealily  derived  from  thence  ;  thofe  of  greater 
length  by  multiplying,  thofe  of  lefs  by  fubdividing,  that  original 
ftandard.  Thus,  by  the  ftatute  called  compofitio  ulnarum  et  pertica- 
rum,  five  yards  and  an  half  make  a  perch  ;  and  the  yard  is  fub- 
divided  into  three  feet,  and  each  foot  into  twelve  inches ;  which 
inches  will  be  each  of  the  length  of  three  grains  of  barley.  Su- 
perficial meafures  are  derived  by  fquaring  thofe  of  length ;  and 
meafures  of  capacity  by  cubing  them.  The  ftandard  of  weights 
was  originally  taken  from  corns  of  wheat,  whence  the  loweft 
denomination  of  weights  we  have  is  ftill  called  a  grain  ;  thirty 
two  of  which  are  directed,  by  the  ftatute  called  compofitio  menfu- 
rarum,  to  compofe  a  penny  weight,  whereof  twenty  make  an 
ounce,  twelve  ounces  a  pound,  and  fo  upwards.  And  upon  thefe 
principles  the  firft  ftandards  were  made  j  which,  being  originally 
fo  fixed  by  the  crown,  their  fubfequent  regulations  have  been 
generally  made  by  the  king  in  parliament.  Thus,  under  king 
Richard  I,  in  his  parliament  holden  at  Weftminfter,  A.D.ii  97,  it 
was  ordained  that  there  mail  be  only  one  weight  and  one  meafure 
throughout  the  kingdom,  and  that  the  cuftody  of  the  afTife  or 
ftandard  of  weights  and  meafures  mail  be  committed  to  certain 
perfons  in  every  city  and  borough  ° ;  from  whence  the  antient 
office  of  the  king's  aulnager  feems  to  have  been  derived,  whofe 
duty  it  was,  for  a  certain  fee,  to  meafure  all  cloths  made  for  fale, 
till  the  office  was  abolifhed  by  the  ftatute  1 1  &  12  W.  III.  c.  20. 
In  king  John's  time  this  ordinance  of  king  Richard  was  frequently 
difpenfed  with  for  money p ;  which  occafioned  a  provifion  to  be 
made  for  inforcing  it,  in  the  great  charters  of  king  John  and  his 
fon q.  Thefe  original  ftandards  were  called  pondus  regis ',  and 

0  William  of  Malmtb.    in  -vita  Hen.  I.         *  9  Hen.  III.  0.25. 
Spelm.  Hen.  I.  apud  Wilkios.  299.  '  Plac.  35  Edvi.I.  afud  Cowel's  Interpr.- 

•  Moved.  Matth.  Paris.  tit.  pondus  regis, 

*  Hoved.  A.D.  1 20 1.  L  1  2  menfura 


276  The    RIGHTS  BOOK!. 

menfura  domlni  regis s ;  and  are  directed  by  a  variety  of  fubfequent 
flatutes  to  be  kept  in  the  exchequer,  and  all  weights  and  mea- 
fures  to  be  made  conformable  thereto '.  But,  as  fir  Edward  Coke 
obferves  u,  though  this  hath  fo  often  by  authority  of  parliament 
been  enacted,  yet  it  could  never  be  effected ;  fo  forcible  is  cuftotn 
with  the  multitude. 

TH  i  R  DLY,  as  money  is  the  medium  of  commerce,  it  is  the 
king's  prerogative,  as  the  arbiter  of  domeftic  commerce,  to  give 
it  authority  or  make  it  current.  Money  is  an  univerfal  medium, 
or  common  ftandard,  by  comparifon  with  which  the  value  of  all 
merchandize  may  be  afcertained :  or  it  is  a  fign,  which  repre- 
fents  the  refpective  values  of  all  commodities.  Metals  are  well 
calculated  for  this  fign,  becaufe  they  are  durable  and  are  capable 
of  many  fubdivifions  :  and  a  precious  metal  is  ftill  better  calcula- 
ted for  this  purpofe,  becaufe  it  is  the  moil  portable.  A  metal  is 
alfo  the  moft  proper  for  a  common  meafure,  becaufe  it  can  eafily 
be  reduced  to  the  fame  ftandard  in  all  nations  :  and  every  parti- 
cular nation  fixes  on  it  it's  own  impreflion,  that  the  weight  and 
ftandard  (wherein  conlifts  the  intrinfic  value)  may  both  be  known 
by  infpection  only. 

As  the  quantity  of  precious  metals  increafes,  that  is,  the  more 
of  them  there  is  extracted  from  the  mine,  this  univerfal  medium 
or  common  fign  will  fink  in  value,  and  grow  lefs  precious.  Above 
a  thoufand  millions  of  bullion  are  calculated  to  have  been  im- 
ported into  Europe  from  America  within  lefs  than  three  centu- 
ries ;  and  the  quantity  is  daily  increafing.  The  confequence  is, 
that  more  money  muft  be  given  now  for  the  fame  commodity 
than  was  given  an  hundred  years  ago.  And,  if  any  accident  was 
to  diminifh  the  quantity  of  gold  and  filver,  their  value  would  pro- 
portionably  rife.  A  horfe,  that  was  formerly  worth  ten  pounds,  is 
now  perhaps  worth  twenty ;  and,  by  any  failure  of  current  fpecie, 

*F/et.2.iz.  c.  5.    ii  Hen.VI.  c.  8.    1 1  Hsn.  VII.  c.  4. 

'   14  Edw.  III.  ft.  i.  c.i  2.    25Edw.  III.     22  Car.  II.  c.  8. 
ft.5.  c.io.     i6PJc.Il.  c.  3.    8  Hen.  VI.         U2lnft.4i. 

the 


Ch.  7.  of    PERSONS.  277 

the  price  may  be  reduced  to  what  it  was.  Yet  is  the  horfe  in 
reality  neither  dearer  not  cheaper  at  one  time  than  another  :  for, 
if  the  metal  which  conflitutes  the  coin  was  formerly  twice  as  fcarce 
as  at  prefent,  the  commodity  was  then  as  dear  at  half  the  price,, 
as  now  it  is  at  the  whole. 

TH  E  coining  of  money  is  in  all  ftates  the  act  of  the  fovereign 
power;  for  the  reafon  juft  mentioned,  that  it's  value  may  be 
known  on  infpedtion.  And  with  refpect  to  coinage  in  general,, 
there  are  three  things  to  be  confidered  therein  ;  the  materials,  the 
impremon,  and  the  denomination, 

WITH  regard  to  the  materials,  fir  Edward  Coke  lays  it  downws. 
that  the  money  of  England  muft  either  be  of  gold  or  filver  ;  and 
none  other  was  ever  iffued  by  the  royal  authority  till  1672,  when, 
copper  farthings  and  half-pence  were  coined  by  king  Charles  the. 
fecond,  and  ordered  by  proclamation  to  be  current  in  all  payments, 
under  the  value  of  fix-pence,  and  not  otherwife.  But  this  copper 
coin  is  not  upon  the  fame  footing  with  the  other  in  many  refpects, 
particularly  with  regard  to  the  offence  of  counterfeiting  it. 

A  s  to  the  impremon,  the  {tamping  thereof  is  the  unqueiUon- 
able  prerogative  of  the  crown  :  for,  though  divers  bi£hops  and  mo- 
nafteries  had  formerly  the  privilege  of  coining  money,  yet,  as  fir 
Matthew  Hale  obferves x,  this  was  ufually  done  by  fpecial  grant 
from  the  king,  or  by  prefcription  which  fuppofes  one ;  and 
therefore  was  derived  from,  and  not  in  derogation  of,  the  royal 
prerogative.  Befides  that  they  had  only  the  profit  of  the  coinage, 
and  not  the  power  of  inflituting  either  the  impreflion  or  deno- 
mination ;  but  had  ufually  the  ftamp  fent  them  from  the  ex- 
chequer. 

THE  denomination,  or  the  value  for  which  the  coin  is  to  pafs 
current,  is  likewife  in  the  breaft  of  the  king  j  and,  if  any  unu- 

w  2lnft.577.  x  iHift.P.  C.  191. 

fual 


278  77oe    RIGHTS  BOOK!. 

fual  pieces  are  coined,  that  value  muft  be  afcertained  by  procla- 
mation. In  order  to  fix  the  value,  the  weight  and  the  finenefs 
of  the  metal  are  to  be  taken  into  confideration  together.  When 
a  given  weight  of  gold  or  filver  is  of  a  given  finenefs,  it  is  then 
of  the  true  ftandard,  and  called  fterling  metal ;  a  name  for  which 
there  are  various  reafons  given y,  but  none  of  them  entirely  fatis- 
factory.  And  of  this  fterling  metal  all  the  coin  of  the  kingdom 
muft  be  made,  by  the  ftatute  25  Edw.  III.  c.  13.  So  that  the 
king's  prerogative  feemeth  not  to  extend  to  the  debafing  or  inhan- 
cing  the  value  of  the  coin,  below  or  above  the  fterling  value z  : 
though  fir  Matthew  Hale3  appears  to  be  of  another  opinion.  The 
king  may  alfo,  by  his  proclamation,  legitimate  foreign  coin,  and 
make  it  current  here ;  declaring  at  what  value  it  {hall  be  taken  in 
payments b.  But  this,  I  apprehend,  ought  to  be  by  companion 
with  the  ftandard  of  our  own  coin  ;  otherwife  the  confent  of 
parliament  will  be  neceiTary.  There  is  at  prefent  no  fuch  legiti- 
mated money  ;  Portugal  coin  being  only  current  by  private  con- 
fent, fo  that  any  one  who  pleafes  may  refufe  to  take  it  in  pay- 
ment. The  king  may  alfo  at  any  time  decry,  or  cry  down,  any 
coin  of  the  kingdom,  and  make  it  no  longer  current e. 

VI.  TH  E  king  is,  laftly,  confidered  by  the  laws  of  England 
as  the  head  and  fupreme  governor  of  the  national  church. 

To  enter  into  the  reafons  upon  which  this  prerogative  is  found- 
ed is  matter  rather  of  divinity  than  of  law.  I  mall  therefore 
only  obferve  that  by  ftatute  26  Hen. VIII.  c.  r.  (reciting  that  the 
king's  majefty  juftly  and  rightfully  is  and  ought  to  be  the  fupreme 
head  of  the  church  of  England  ;  and  fo  had  been  recognized  by 
the  clergy  of  this  kingdom  in  their  convocation)  it  is  enacted,  that 
the  king  mail  be  reputed  the  only  fupreme  head  in  earth  of  the 
church  of  England,  and  (hall  have,  annexed  to  the  imperial  crown 
of  this  realm,  as  well  the  title  and  ftile  thereof,  as  all  jurifdic- 

1  Spelm.  Glofl".  203.  b  7&V.  197. 

2  2lnft.  577.  c  Ibid. 
a  iH.  P.  C.  194. 

tions, 


Ch.  7.  of    PERSON  s.  279 

tions,  authorities,  and  commodities,  to  the  faid  dignity  of  fupreme 
head  of  the  church  appertaining.  And  another  ftatute  to  the  fame 
purport  was  made,  i  Eliz.  c..i. 

I  N  virtue  of  this  authority  the  king  convenes,  prorogues,  re- 
trains, regulates,  and  diflblves  all  eccleiiaftical  fynods  or  convo- 
cations. This  was  an  inherent  prerogative  of  the  crown,  long 
before  the  time  of  Henry  VIII,  as  appears  by  the  ftatute  8  Hen.  VI. 
c.  I .  and  the  many  authors,  both  lawyers  and  hiftorians,  vouched  by 
fir  Edward  Coked.  So  that  the  ftatute  25  Hen. VIII.  c.ip.  which 
reftrains  the  convocation  from  making  or  putting  in  execution  any 
canons  repugnant  to  the  king's  prerogative,  or  the  laws,  cuftoms, 
and  ftatutes  of  the  realm,  was  merely  declaratory  of  the  old 
common  lawe:  that  part  of  it  only  being  new,  which  makes  the 
king's  royal  affent  actually  neceffary  to  the  validity  of  every  canon. 
The  convocation  or  eccleiiaftical  fynod,  in  England,  differs  con- 
liderably  in  it's  conftitution  from  the  fynods  of  other  chriftian 
kingdoms  :  thofe  confifHng  wholly  of  bifhops  ;  whereas  with  us 
the  convocation  is  the  miniature  of  a  parliament,  wherein  the 
archbifhop  prefides  with  regal  flate ;  the  upper  houfe  of  bifliops 
reprefents  the  houfe  of  lords  ;  and  the  lower  houfe,  compofed  of 
reprefentatives  of  the  feveral  diocefes  at  large,  and  of  each  parti- 
cular chapter  therein,  refembles  the  houfe  of  commons  with  it's 
knights  of  the  {hire  and  burgeffes  f.  This  conftitution  is  faid  to 
be  owing  to  the  policy  of  Edward  I;  who  thereby  at  one  and  the 
fame  time  let  in  the  inferior  clergy  to  the  privilege  of  forming 
eccleliaftical  canons,  (which  before  they  had  not)  and  alfo  intro- 
duced a  method  of  taxing  ecclefiaftical  benefices,  by  confent  of 
convocation  g. 

d  4lnft.  322,323.  compofed  of  the  bifhops  and  fuperinten- 

e  i  2  Rep.  72.  dants ;  and  alfo  of  deputies,  one  of  which 

f  In  the  diet  of  Sweden,  where  the  eccle-  is  chofen  by  every  ten  parifhes  or  rural 

fiaftics  form  one  of  the  branches  of  the  le-  deanry.    Mod.  Un.  Hift.  xxxiii.  i  8. 

giflature,    the   chambsr  of  the  clergy  re-         8  Gilb.  hift.  of  exch,  c.  4. 

fembles  the  convocation  of  England.    It  is 

FROM 


280  77oe    RIGHTS  BOOK  I. 

FROM  this  prerogative  alfo,  of  being  the  head  of  the  church, 
ariies  the  king's  right  of  nomination  to  vacant  bifhopricks,  and 
certain  other  eccleiiaftical  preferments;  which  will  more  properly 
be  confidered  when  we  come  to  treat  of  the  clergy.  I  mall  only 
here  obferve,  that  this  is  now  done  in  confequence  of  the  ilatute 
25  Hen.  VIII.  c.  20. 

A  s  head  of  the  church,  the  king  is  likewife  the  dernier  refort 
in  all  ecclefiaftical  caufes ;  an  appeal  lying  ultimately  to  him  in 
chancery  from  the  fentence  of  every  ecclefiaftical  judge  :  which 
right  was  reftored  to  the  crown  by  flatute  25  Hen. VIII.  C.IQ.  as 
will  more  fully  be  ihewn  hereafter. 


Ch.  8.  of    PERSONS.  281 


CHAPTER     THE      EIGHTH. 
OF     THE     KING'S     REVENUE. 


HAVING,  in  the  preceding  chapter,  confidered  at  large 
thofe  branches  of  the  king's  prerogative,  which  contribute 
to  his  royal  dignity,  and  conflitute  the  executive  power  of  the 
government,  we  proceed  now  to  examine  the  king's  ^#7  prero- 
gatives, or  fuch  as  regard  his  revenue;  which  the  Britim  confli- 
tution  hath  vefted  in  the  royal  perfon,  in  order  to  fupport  his  dig- 
nity and  maintain  his  power :  being  a  portion  which  each  fubject 
contributes  of  his  property,  in  order  to  fecure  the  remainder. 

THIS  revenue  is  either  ordinary,  or  extraordinary.  The  king's 
ordinary  revenue  is  fuch,  as  has  either  fubfiited  time  out  of  mind 
in  the  crown  ;  or  elfe  has  been  granted  by  parliament,  by  way  of 
purchafe  or  exchange  for  fuch  of  the  king's  inherent  hereditary 
revenues,  as  were  found  inconvenient  to  the  fubjedt,. 

WH  E  N  I  fay  that  it  has  fubfifted  time  out  of  mind  in  the 
crown,  I  do  not  mean  that  the  king  is  at  prefent  in  the  actual 
pofleffion  of  the  whole  of  this  revenue.  Much  (nay,  the  greatefl 
part)  of  it  is  at  this  day  in  the  hands  of  fubjecls  j  to  whom  it 
has  been  granted  out  from  time  to  time  by  the  kings  of  England  : 
which  has  rendered  the  crown  in  fome  meafure  dependent  on  the 
people  for  it's  ordinary  fupport  and  fubfiftence.  So  that  I  muft  be 
obliged  to  recount,  as  part  of  the  royal  revenue,  what  lords  of 

M  m,  manors 


282  77j2    RIGHTS  BOOK!. 

manors  and  other  fubjeifls  frequently  look  upon  to  be  their  own 
abfolute  rights ;  becaufe  they  are  and  have  been  vefted  in  them 
and  their  anceftors  for  ages,  though  in  reality  originally  derived 
from  the  grants  of  our  antient  princes. 

I.  T  H  E  firft  of  the  king's  ordinary  revenues,  which  I  fhall  take 
notice  of,  is  of  an  ecclefiaftical  kind ;  (as  are  alfo  the  three  fuc- 
ceeding  ones)  viz.  the  cuftody  of  the  temporalties  of  bifhops;  by 
which  are  meant  all  the  lay  revenues,  lands,  and  tenements  (in 
which  is  included  his  barony)  which  belong  to  an  archbilhop's  or 
bifhop's  fee.  And  thefe  upon  the  vacancy  of  the  bimoprick  are 
immediately  the  right  of  the  king,  as  a  confequence  of  his  pre- 
rogative in  church  matters ;  whereby  he  is  coniidered  as  the  foun- 
der of  all  archbimopricks  and  bifhop ricks,  to  whom  during  the 
vacancy  they  revert.  And  for  the  fame  reafon,  before  the  dillb- 
lution  of  abbeys,  the  king  had  the  cuftody  of  the  temporalties  of 
all  fuch  abbeys  and  priories  as  were  of  royal  foundation  (but  not 
of  thofe  founded  by  fubjedls)  on  the  death  of  the  abbot  or  prior a. 
Another  reafon  may  alfo  be  given,  why  the  policy  of  the  law 
hath  vefted  this  cuftody  in  the  king ;  becaufe,  as  the  fucceflbr  is 
not  known,  the  lands  and  poflemons  of  the  fee  would  be  liable 
to  fpoil  and  devaftation,  if  no  one  had  a  property  therein.  There- 
fore the  law  has  given  the  king,  not  the  temporalties  themfelves, 
but  the  cujlody  of  the  temporalties,  till  fuch  time  as  a  fucceiTor  is 
appointed  ;  with  power  of  taking  to  himfelf  all  the  intermediate 
profits,  without  any  account  to  the  fucceflbr;  and  with  the 
right  of  prefenting  (which  the  crown  very  frequently  exercifes) 
to  fuch  benefices  and  other  preferments  as  fall  within  the  time  of 
vacation  b.  This  revenue  is  of  fo  high  a  nature,  that  it  could  not 
be  granted  out  to  a  fubjecl:,  before,  or  even  after,  it  accrued: 
but  now  by  the  ftatute  15  Edw.  III.  ft.  4.  c.  4  &  5.  the  king 
may,  after  the  vacancy,  leafe  the  temporalties  to  the  dean  and 
chapter  j  faving  to  himfelf  all  advowfons,  efcheats,  and  the  like. 
Our  antient  kings,  and  particularly  William  Rufus,  were  not 
only  remarkable  for  keeping  the  bifhopricks  a  long  time  vacant, 

•  2  inft.  15.  >>  sut.  17  Edw. II.  c.  Mf.  F.  N.  6.32. 

for 


Ch.  8.  of    PERSONS.  283 

for  the  fake  of  enjoying  the  temporal  ties,  but  alfo  committed 
horrible  wafte  on  the  woods  and  other  parts  of  the  eftate  ;  and, 
to  crown  all,  would  never,  when  the  fee  was  filled  up,  reftore  to 
the  bifhop  his  temporalties  again,  unlefs  he  purchafed  them  at  an 
exorbitant  price.  To  remedy  which,  king  Henry  the  firftc  granted 
a  charter  at  the  beginning  of  his  reign,  promifmg  neither  to  fell, 
nor  let  to  farm,  nor  take  any  thing  from,  the  domains  of  the 
church,  till  the  fucceflbr  was  inftalled.  And  it  was  made  one  of 
the  articles  of  the  great  charter d,  that  no  wafte  fhould  be  com- 
mitted in  the  temporalties  of  bifhopricks,  neither  mould  the  cuf- 
tody  of  them  be  fold.  The  fame  is  ordained  by  the  ftatute  of 
Weftminfter  the  firft6;  and  the  ftatute  i4Edw.  III.  ft.  4.  c-4. 
(which  permits,  as  we  have  feen,  a  leafe  to  the  dean  and  chapter) 
is  ftill  more  explicit  in  prohibiting  the  other  exactions.  It  was 
alfo  a  frequent  abufe,  that  the  king  would  for  trifling,  or  no 
caufes,  feife  the  temporalties  of  bifhops,  even  during  their  lives, 
into  his  own  hands  :  but  this  is  guarded  againft  by  ftatute 
I  Edw.  III.  ft.  2.  c.  2. 

TH  i  s  revenue  of  the  king,  which  was  formerly  very  confi- 
derable,  is  now  by  a  cuftom'ary  indulgence  almoft  reduced  to  no- 
thing :  for,  at  prefent,  as  foon  as  the  new  bifhop  is  confecrated 
and  confirmed,  he  ufually  receives  the  reftitution  of  his  tempo- 
ralties quite  entire,  and  untouched,  from  the  king ;  and  then, 
and  not  fooner,  he  has  a  fee-fimple  in  his  bifhoprick,  and  may 
maintain  an  adlion  for  the  profits f. 

II.  TH  E  king  is  entitled  to  a  corody,  as  the  law  calls  it,  out 
of  every  bifhoprick  :  that  is,  to  fend  one  of  his  chaplains  to  be 
maintained  by  the  bifhop,  or  to  have  a  penfion  allowed  him  till 
the  bifhop  promotes  him  to  a  benefice 8.  This  is  alfo  in  the  na- 
ture of  an  acknowlegement  to  the  king,  as  founder  of  the  fee ; 
fince  he  had  formerly  the  fame  corody  or  penfion  from  every  abbey 

c  Matth.  Paris.  f  Co.  Litt.  67.341. 

*  9  Hen.  III.  c.  5.  £  F.  N.  B.  230. 

'  3  Edvv.  I.  c.  21. 

M  m  2  or 


284  2%e    RIGHTS  BOOKL 

or  priory  of  royal  foundation.  It  is,  I  apprehend,  now  fallen  into 
total  difufe  ;  though  fir  Matthew  Hale  fays  h,  that  it  is  due  of 
common  right,  and  that  no  prefcription  will  difcharge  it. 

III.  TH  E  king  alfo  (as  was  formerly  obferved')  is  entitled  to 
all  the  tithes  arifing  in  extraparochial  places1':  though  perhaps  it 
may  be  doubted  how  far  this  article,  as  well  as  the  laft,  can  be 
properly  reckoned  a  part  of  the  king's  own  royal  revenue  -,  fince 
a  corody  fupports  only  his  chaplains,  and  thefe  extraparochial 
tithes  are  held  under  an  implied  truft,  that  the  king  will  diftri- 
bute  them  for  the  good  of  the  clergy  in  general. 

IV.  TH  E  next  branch  confifts  in  the  firfl-fruits,  and  tenths, 
of  all  fpiritual  preferments  in  the  kingdom  ;  both  of  which  I 
mall  confider  together. 

TH  E  s  E  were  originally  a  part  of  the  papal  usurpations  over 
the  clergy  of  this  kingdom ;  firft  introduced  by  Pandulph  the 
pope's  legate,  during  the  reigns  of  king  John  and  Henry  the 
third,  in  the  fee  of  Norwich  ;  and  afterwards  attempted  to  be 
made  univerfal  by  the  popes  Clement  V  and  John  XXII,  about 
the  beginning  of  the  fourteenth  century.  The  firft-fruits,  primi- 
tiae,  or  annates,  were  the  firft  year's  whole  profits  of  the  fpiritual 
preferment,  according  to  a  rate  or  valor  made  under  the  direction 
of  pope  Innocent  IV  by  Walter  bifhop  of  Norwich  in  38  Hen. Ill, 
and  afterwards  advanced  in  value  by  commiflion  from  pope  Ni- 
cholas III.  A.  D.  1292,  20  Edw.  I1;  which  valuation  of  pope 
Nicholas  is  flill  preferved  in  the  exchequer  m.  The  tenths,  or 
decimae,  were  the  tenth  part  of  the  annual  profit  of  each  living 
by  the  fame  valuation ;  which  was  alfo  claimed  by  the  holy  fee, 
under  no  better  pretence  than  a  ftrange  mifapplication  of  that 
precept  of  the  Levitical  law,  which  directs  ",  "  that  the  Levites 
"  mould  offer  the  tenth  part  of  their  tithe  as  a  heave-offering  to 

*  Notes  on  F.N.  B.  above  cited.  '  F.N.B.  176. 

1  page  113.  "3  Inrt.  154. 

k  alnfl.  647.  n  Numb,  xviii.  26. 

"the 


Ch.  8.  of   PERSONS.  285 

"  the  Lord,  and  give  it  to  Aaron  the  high  prieft."  But  this  claim 
of  the  pope  met  with  vigorous  refiftance  from  the  Englifli  par- 
liament ;  and  a  variety  of  acts  were  parTed  to  prevent  and  restrain 
it,  particularly  the  ftatute  6  Hen.  IV.  c.  i.  which  calls  it  a  hor- 
rible mifchief  and  damnable  cuftom.  But  the  popim  clergy, 
blindly  devoted  to  the  will  of  a  foreign  matter,  ftill  kept  it  on 
foot;  fometimes  more  fecretly,  fometimes  more  openly.and  avow- 
edly :  fo  that,  in  the  reign  of  Henry  VIII,  it  was  computed,  that, 
in  the  eompafs  of  fifty  years  800000  ducats  had  been  lent  to 
Rome  for  firft-fruits  only.  And,  as  the  clergy  exprefled  this 
willingnefs  to  contribute  fo  much  of  their  income  to  the  head  of 
the  church,,  it  was  thought  proper  (when  in  the  fame  reign  the 
papal  power  was  abolifhed,  and  the  king  was  declared  the  head, 
of  the  church  of  England)  to  annex  this  revenue  to  the  crown  3, 
which  was  done  by  ftatute  26  Hen. VIII.  0.3.  (confirmed  by  fta- 
tute i  Eliz.  0.4.)  and  a  new  valor  benefidorum  was  then  made,. 
by  which  the  clergy  are  at  prefent  rated. 

BY  thefe  laftmentioned  ttatutes  all  vicarages  under  ten  pounds, 
a  year,  and  all  rectories  under  ten  marks,  are  difcharged  from  the 
payment  of  firft-fruits  :  and  if,  in  fuch  livings  as  continue 
chargeable  with  this  payment,  the  incumbent  lives  but  half  a 
year,  he  (hall  pay  only  one  quarter  of  his  firft-fruits ;  if  but  one. 
whole  year,  then  half  of  them;  if  a  year  and  half,  three  quar- 
ters ;  and  if  two  years,  then  the  whole ;  and  not  otherwife.. 
Likewife  by  the  ftatute  27  Hen. VIII.  c.  8.  no  tenths  are  to  be. 
paid  for  the  firft  year,  for  then  the  firft-fruits  are  due  :  and  by, 
other  ftatutes  of  queen  Anne,  in  the  fifth  and  fixth  years  of  her 
reign,  if  a  benefice  be  under  fifty  pounds  per  annum  clear  yearly 
value,  it  fhall  be  difcharged  of  the  paymentof  firft-fruits  and  tenths. 

TH  u  s  the  richer  clergy,  being,  by  the  criminal  bigotry  of 
their  popilli  predeceflbrs,  fubjected  at  firft  to  a  foreign  exaction, 
were  afterwards,  when  that  yoke  was  ftiaken  of,  liable  to  a  like 
milapphcation  of  their  revenues,  through  the  rapacious  difpofition 
of  the  then  reigning  monarch  :  till  at  length  the  piety  of  queen 

Anne 


286  Tlie    RIGHTS  BOOK  I. 

Anne  reflored  to  the  church  what  had  been  thus  indireclly  taken 
from  it.  This  fhe  did,  not  by  remitting  the  tenths  and  firft- 
fruits  entirely ;  but,  in  a  fpirit  of  the  trueft  equity,  by  applying 
thefe  fuperfluities  of  the  larger  benefices  to  make  up  the  deficien- 
ces  of  the  fmaller.  And  to  this  end  fhe  granted  her  royal  charter, 
which  was  confirmed  by  the  ftatute  2  Ann.  c.  1 1.  whereby  all  the 
revenue  of  firft-fruits  and  tenths  is  veiled  in  truftees  for  ever,  to 
form  a  perpetual  fund  for  the  augmentation  of  poor  livings.  This 
is  ufually  called  queen  Anne's  bounty ;  which  has  been  ftill  far- 
ther regulated  by  fubfequent  flatutes,  too  numerous  here  to  recite, 

V.  TH  E  next  branch  of  the  king's  ordinary  revenue  (which, 
as  well  as  the  fubfequent  branches,  is  of  a  lay  or  temporal  nature) 
confifts  in  the  rents  and  profits  of  the  demefne  lands  of  the  crown. 
Thefe  demefne  lands,  terrae  dommicales  regis,  being  either  the 
fhare  referred  to  the  crown  at  the  original  diftribution  of  landed 
property,  or  fuch  as  came  to  it  afterwards  by  forfeitures  or  other 
means,  were  antiently  very  large  and  extenfive ;  comprizing  di- 
vers manors,  honors,  and  lordfhips ;  the  tenants  of  which  had 
very  peculiar  privileges,  as  will  be  fhewn  in  the  fecond  book  of 
thefe  commentaries,  when  we  fpeak  of  the  tenure  in  antient  de- 
mefne. At  prefent  they  are  contracted  within  a  very  narrow 
compafs,  having  been  almoft  entirely  granted  away  to  private 
fubjects.  This  has  occafioned  the  parliament  frequently  to  inter- 
pofe  ;  and,  particularly,  after  king  William  III  had  greatly  im- 
poverifhed  the  crown,  an  act  pafled0,  whereby  all  future  grants 
or  leafes  from  the  crown  for  any  longer  term  than  thirty  one  years 
or  three  lives  are  declared  to  be  void  ;  except  with  regard  to 
houfes,  which  may  be  granted  for  fifty  years.  And  no  reverfionary 
leafe  can  be  made,  fo  as  to  exceed,  together  with  the  eftate  in  be- 
ing, the  fame  term  of  three  lives  or  thirty  one  years  :  that  is,  where 
there  is  a  fubfifting  leafe,  of  which  there  are  twenty  years  flill  to 
come,  the  king  cannot  grant  a  future  interefr,  to  commence  after 
the  expiration  of  the  former,  for  any  longer  term  than  eleven 
years.  The  tenant  mufb  alfo  be  made  liable  to  be  punifhed  for 

0  i  Ann.  ft.  i.  c,  7. 

committing 


Ch.  8.  of    PERSONS.  287 

committing  wafte;  and  the  ufual  rent  mud  be  referved,  or,  where 
there  has  ufually  been  no  rent,  one  third  of  the  clear  yearly 
value p.  The  misfortune  is,  that  this  ac~l  was  made  too  late,  after 
almoft  every  valuable  pofleflion  of  the  crown  had  been  granted 
away  for  ever,  or  elfe  upon  very  long  leafes ;  but  may  be  of  be- 
nefit to  poflerity,  when  thofe  kafes  come  to  expire. 

VI.  HITHER  might  have  been  referred  the  advantages 
which  were  ufed  to  arife  to  the  king  from  the  profits  of  his  mili- 
tary tenures,  to  which  moft  lands  in  the  kingdom  were  fubject, 
till  the  ilatute  12  Car.  II.  c.  24.  which  in  great  meafure  abolifhed 
them  all  :  the  explication  of  die  nature  of  which  tenures  muft  be 
referred  to  the  fecond  book  of  thefe  commentaries.  Hither  alfo 
might  have  been  referred  the  profitable  prerogative  of  purveyance 
and  pre-emption  :  which  was  a  right  enjoyed  by  the  crown  of 
buying  up  provifions  and  other  neceffaries,  by  the  intervention  of 
the  king's  purveyors,  for  the  ufe  of  his  royal  houfhold,  at  an 
appraifed  valuation,  in  preference  to  all  others,  and  even  without 
confent  of  the  owner  ;  and  alfo  of  forcibly  impreffing  the  car- 
riages and  horfes  of  the  fubjedt,  to  do  the  king's  bufinefs  on  the 
public  roads,  in  the  conveyance  of  timber,  baggage,  and  the 
like,  however  inconvenient  to  the  proprietor,  upon  paying  him 
a  fettled  price.  A  prerogative,  which  prevailed  pretty  generally 
throughout  Europe,  during  the  fcarcity  of  gold  and  filver,  and 
the  high  valuation  of  money  confequential  thereupon.  In  thofe 
early  times  the  king's  houmold  (as  well  as  thofe  of  inferior  lords) 
were  fupported  by  fpecific  renders  of  corn,  and  other  victuals, 
from  the  tenants  of  the  refpedlive  demefnes  ;  and  there  was  alfo 
a  continual  market  kept  at  the  palace  gate  to  furnifh  viands  for 
the  royal  ufeq.  And  this  anfwered  all  purpofes,  in  thofe  ages  of 
fimplicity,  fo  long  as  the  king's  court  continued  in  any  certain 
place.  But  when  it  removed  from  one  part  of  the  kingdom  to 
another  (as  was  formerly  very  frequently  done)  it  was  found  ne- 

P  In  like  manner,  by  the  civil  law,  the     perial  crown  could   not  be  alienated,  but 
inheritances  m  fundi  fatrimoniahs  of  the  im-     only  let  to  farm.    Cod,  L  ll.  t.6l- 

i  4  Inft.  273. 

cefTary 


288  77je    RIGHTS  BOOK!, 

cefiary  to  fend  purveyors  beforehand,  to  get  together  a  fufficient 
quantity  of  proviiions  and  other  neceffaries  for  the  houfhold  : 
and,  left  the  unufual  demand  mould  raife  them  to  an  exorbitant 
price,  the  powers  before-mentioned  were  vefted  in  thefe  purveyors : 
who  in  procefs  of  time  very  greatly  abufed  their  authority,  and 
became  a  great  oppreffion  to  the  fubjecl:  though  of  little  advan- 
tage to  the  crown  ;  ready  money  in  open  market  (when  the 
royal  refidence  was  more  permanent,  and  fpecie  began  to  be 
plenty)  being  found  upon  experience  to  be  the  beft  proveditor 
of  any.  Wherefore  by  degrees  the  powers  of  purveyance  have 
declined,  in  foreign  countries  as  well  as  our  own;  and  particularly 
were  abolifhed  in  Sweden  by  Guftavus  Adolphus,  towards  the  be- 
ginning of  the  laft  century".  And,  with  us  in  England,  having 
fallen  into  difufe  during  the  fufpenfion  of  monarchy,  king  Charles 
at  his  restoration  confented,  by  the  fame  ftatute,  to  refign  intirely 
thefe  branches  of  his  revenue  and  power  :  and  the  parliament,  in 
part  of  recompenfe,  fettled  on  him,  his  heirs,  and  fucceffors,  for 
ever,  the  hereditary  excife  of  fifteen  pence  per  barrel  on  all  beer~ 
and  ale  fold  in  the  kingdom,  and  a  proportionable  fum  for  certain 
other  liquors.  So  that  this  hereditary  excife,  the  nature  of  which 
{hall  be  farther  explained  in  the  fubfequent  part  of  this  chapter, 
now  forms  the  fixth  branch  of  his  majefty's  ordinary  revenue, 

VII.  A  SEVENTH  branch  might  alfo  be  computed  to  have 
arifen  from  wine  licences  ;  or  the  rents  payble  to  the  crown  by 
fuch  perfons  as  are  licenfed  to  fell  wine  by  retale  throughout 
England,  except  in  a  few  privileged  places.  Thefe  were  firft 
fettled  on  the  crown  by  the  ftatute  12  Car.  II.  c.  25.  and,  to- 
gether with  the  hereditary  excife,  made  up  the  equivalent  in 
value  for  the  lofs  fuftained  by  the  prerogative  in  the  abolition  of 
the  military  tenures,  and  the  right  of  pre-emption  and  purvey- 
ance :  but  this  revenue  was  abolifhed  by  the  ftatute  30  Geo.  II. 
c.  19.  and  an  annual  fum  of  upwards  of  yooo/.  per  annum,  ifTuing 
out  of  the  new  ftamp  duties  impofed  on  wine  licences,  was  fettled 
on  the  crown  in  it's  ftead. 

'  Mod.  Un.  Hift.  xxxiii.  220. 

VIII.  AN 


Ch.  8.  of  PERSONS.  289 

VIII.  AN  eighth  branch  of  the  king's  ordinary  revenue  is 
ufually  reckoned  to  confift  in  the  profits  ariling  from  his  forefts. 
Forefts  are  wafle  grounds  belonging  to  the  king,  replenifhed  with 
all  manner  of  beafts  of  chafe  or  venary;   which  are  under  the 
king's  protection,   for  the  fake  of  his  royal  recreation  and  de- 
light :   and,  to  that  end,  and  for  prefervation  of  the  king's  game, 
there  are  particular  laws,  privileges,  courts  and  officers  belong- 
ing to  the  king's  forefts;   all  which  will  be,  in  their  turns,  ex- 
plained in  the  fubfequent  books  of  thefe  commentaries.     What 
we  are  now  to  conlider  are  only  the  profits  ariiing  to  the  king 
from  hence ;    which  confift  principally  in  amercements  or  fines 
levied  for  offences  againft  the  foreft-laws.    But  as  few,  if  any, 
courts  of  this  kind  for  levying  amercements '  have  been  held  fmce 
1632,  8  Car.  I.  and  as,  from  the  accounts  given  of  the  proceed- 
ings in  that  court  by  our  hiftories  and  law  books s,  nobody  would 
now  wifh  to  fee  them  again  revived,  it  is  needlefs  (at  leaft  in  this 
place)  to  purfue  this  enquiry  any  farther. 

IX.  THE  profits  arifing  from  the  king's  ordinary  courts  of 
juftice  make  a  ninth  branch  of  his  revenue.    And  thefe  confift 
not  only  in  fines  impofed  upon  offenders,  forfeitures  of  recog- 
nizances, and  amercements  levied  upon  defaulters;   but  alfo  in 
certain  fees  due  to  the  crown  in  a  variety  of  legal  matters,  as, 
for  fetting  the  great  feal  to  charters,  original  writs,  and  other  fo- 
renfic  proceedings,  and  for  permitting  fines  to  be  levied  of  lands  in 
order  to  bar  entails,  or  otherwife  to  infure  their  title.     As  none 
of  thefe  can  be  done  without  the  immediate  intervention  of  the 
king,  by  himfelf  or  his  officers,  the  law  allows  him  certain  per- 
quifites  and  profits,  as  a  recompenfe  for  the  trouble  he  under- 
takes for  the  public.    Thefe,  in  procefs  of  time,  have  been  almoft 
all  granted  out  to  private  perfons,  or  elfe  appropriated  to  certain 
particular  ufes :    fo  that,    though  our  law-proceedings   are  ftill 

f  Roger  North,  in  his  life  of  lord  keeper     the  reiteration  :  but  I  have  met  with  no  re- 
North,  (43,44.)  mentions  an  eyre,  miter,     port  of  it's  proceedings, 
to  have  been  held  fouth  of  Trent  foon  after        3  i  Jones.  267  — 298. 

N  n  loaded 


290  The    RIGHTS  BOOK  I. 

loaded  with  their  payment,  very  little  of  them  is  now  returned 
into  the  king's  exchequer  j  for  a  part  of  whofe  royal  maintenance 
they  were  originally  intended.  All  future  grants  of  them  how- 
ever, by  the  ftatute  i  Ann.  ft.  2.  c.j.  are  to  endure  for  no  longer 
time  than  the  prince's  life  who  grants  them. 

X.  A  TENTH  branch  of  the  king's  ordinary  revenue,  faid 
to  be  grounded  on  the  confideration  of  his  guarding  and  protect- 
ing the  feas  from  pirates   and  robbers,  is  the  right  to  royal  jifo, 
which  are  whale  and  fturgeon :    and  thefe,  when  either  thrown 
afhore,  or  caught  near  the  coafts,  are  the  property  of  the  king, 
on  account l  of  their  fuperior  excellence.     Indeed  our  anceftors 
feem  to  have  entertained  a  very  high  notion  of  the  importance  of 
this  right ;  it  being  the  prerogative  of  the  kings  of  Denmark  and 
the  dukes  of  Normandy  u;  and  from  one  of  thefe  it  was  probably 
derived  to  our  princes.    It  is  expreflly  claimed  and  allowed  in  the 
ftatute  de  praerogativa  regis™  :   and  the  moft  antient  treatifes  of 
law  now  extant  make  mention  of  itx;   though  they  feem  to  have 
made  a  diftinclion  between  whale  and  fturgeon,  as  was  incident- 
ally obferved  in  a  former  chapter y. 

XI.  ANOTHER  maritime  revenue,  and  founded  partly  upon 
the  fame  reafon,  is  that  of  fhipwrecks ;  which  are  alfo  declared 
to  be  the  king's  property  by  the  fame  prerogative  ftatute  lyEdw.  II. 
c.i  i.  and  were  fo,  long  before,  at  the  common  law.   It  is  worthy 
obfervation,    how  greatly  the  law  of  wrecks  has  been  altered, 
and  the  rigour  of  it  gradually  foftened,  in  favour  of  the  diftreffed 
proprietors.     Wreck,    by  the  antient  common  law,  was  where 
any  {hip  was  loft  at  fea,  and  the  goods  or  cargo  were  thrown  upon 
the  land;   in  which  cafe  thefe  goods,  fo  wrecked,  were  adjudged 
to  belong  to  the  king :   for  it  was  held,  that,   by  the  lofs  of  the 
fhip,  all  property  was  gone  out  of  the  original  owner z.    But  this 

'  Plowd.  315.  *  Brafton.  /.  3.  (-.3.   Britton.  c.jj.  Fleta. 

"  Stiernh.  d;jure  Sueonum,  I.  2.  c.  8.  Gr.     /.  i.   f.  45  &  46. 
Coujtvm.     :ip   17.  y  ch.  4.    pag.  223. 

w  I7lidw.  II.   c.  ii.  z  Dr  &  St.  d.  2.   0.51. 

was 


Ch.  8.  of    PERSONS.  291 

was  undoubtedly  adding  forrow  to  forrow,  and  was  confonant 

neither  to  reafon  nor  humanity.     Wherefore  it  was  firft  ordained 

by  king  Henry  I,  that  if  any  perfon  efcaped  alive  out  of  the  (hip 

it  fliould  be  no  wreck a ;    and  afterwards  king  Henry  II,  by  his 

charter13,  declared,  that  if  on  the  coafts  of  either  England,  Poiclou, 

Oleron,    or  Gafcony,  any  fhip  fliould  be  diflrefled,    and  either 

man  or  bead  {hould  efcape  or  be  found  therein  alive,  the  goods 

fhould  remain  to  the  owners,  if  they  claimed  them  within  three 

months  ;  but  otherwife  fliould  be  efteemed  a  wreck,  and  fliould 

belong  to  the  king,  or  other  lord  of  the  franchife.  This  was  again 

confirmed  with  improvements  by  king  Richard  the  firft ;    who, 

in  the  fecond  year  of  his  reign  %  not  only  eftabliflied  thefe  con- 

ceflions,  by  ordaining  that  the  owner,  if  he  was  fliipwrecked  and 

efcaped,  "  omnes  res  juas  liberas  et  quietas  haberet,"  but  alfo,  that, 

if  he  periflied,  his  children,  or  in  default  of  them  his  brethren 

and  fillers,  fliould  retain  the  property;  and,  in  default  of  brother 

or  fifter,  then  the  goods  fliould  remain  to  the  king  d.    And  the 

law,  fo  long  after  as  the  reign  of  Henry  III,  feems  fKll   to  have 

been  guided  by  the  fame  equitable  provifions.    For  then  if  a  dog 

(for  inftance)  efcaped,  by  which  the  owner  might  be  difcovered, 

or  if  any  certain  mark  were  fet  on  the  goods,  by  which  they 

might  be  known  again,  it  was  held  to  be  no  wreck e.    And  this 

is  certainly  moil  agreeable  to  reafon ;   the  rational  claim  of  the 

king  being  only  founded  upon  this,  that  the  true  owner  cannot 

be  afcertained.     But  afterwards,  in  the  ftatute  of  Weft-minder 

the  firft  f,  the  law  is  laid  down  more  agreeable  to  the  charter  of 

king  Henry  the  fecond  :  and  upon  that  ftatute  hath  flood  the  legal 

doctrine  of  wrecks  to  the  prefent  time.    It  enacts,  that  if  any  live 

thing  efcape  (a  man,  a  cat,  or  a  dog;  which,  as  in  Bradlon,  are 

only  put  for  examples5,)  in  this  cafe,  and,  as  it  feems,  in  this  cafe 

'  Spelm.  Cod.  apud  Wilkins.  305.  and  ordered  them  to  remain  to  the  owners; 

b  26  May,  A.D.  1174.  I  Rym.  Feed.  36.  adding  this  humane  expoftulation,  "Quod 

c  Rog.  Hoved.  in  Ric.  I.  "  tnim  jus  habet  ffcus  in  aliena  ealamitate,  ut 

d  In  like  manner  Conftantine  the  great,  "  de  re  tarn  lufluofa  compendium  fefietur  ?" 

finding  that  by  the  imperial  law  the  revenue  e  Braft.  7.3.  c.  3. 

of  wrecks  was  given  to  the  prince's  treafury  f  3  Edw.  I.  c.  4. 

or//f».r,rertraineditbyanedift(Co«',i  1.5.1.)  g  Flet.  /.  i.  c .  44.    i  Inft.  167. 

N  n  2  only, 


292  7%e    RIGHTS  BOOK!. 

only,  it  is  clearly  not  a  legal  wreck  :  but  the  fheriff  of  the  county 
is  bound  to  keep  the  goods  a  year  and  a  day  (as  in  France  for  one 
year,  agreeably  to  the  maritime  laws  of  Oleron  h,  and  in  Holland 
for  a  year  and  an  half)  that  if  any  man  can  prove  a  property  in 
them,  either  in  his  own  right  or  by  right  of  reprefentation ',  they 
mall  be  reftored  to  him  without  delay;  but,  if  no  fuch  property 
be  proved  within  that  time,  they  then  fhall  be  the  king's.  If  the 
goods  are  of  a  perifhable  nature,  the  fherifF  may  fell  them,  and 
the  money  fhall  be  liable  in  their  ftead  k.  This  revenue  of  wrecks 
is  frequently  granted  out  to  lords  of  manors,  as  a  royal  fran- 
chife ;  and  if  any  one  be  thus  entitled  to  wrecks  in  his  own  land, 
and  the  king's  goods  are  wrecked  thereon,  the  king  may  claim 
them  at  any  time,  even  after  the  year  and  day '. 

IT  is  to  be  obferved,  that,  in  order  to  conftitute  a  legal  wreck, 
the  goods  mufl  come  to  land.  If  they  continue  at  fea,  the  law 
difhinguifhes  them  by  the  barbarous  and  uncouth  appellations  of 
jetj'am,  flotjam,  and  ligan.  Jetfam  is  where  goods  are  caft  into 
the  fea,  and  there  fink  and  remain  under  water  :  flotfam  is  where 
they  continue  fwimming  on  the  furface  of  the  waves  :  ligan  is 
where  they  are  funk  in  the  fea,  but  tied  to  a  cork  or  buoy,  in 
order  to  be  found  again  m.  Thefe  are  alfo  the  king's,  if  no  owner 
appears  to  claim  them;  but,  if  any  owner  appears,  he  is  entitled 
to  recover  the  poffemon.  For  even  if  they  be  caft  overboard, 
without  any  mark  or  buoy,  in  order  to  lighten  the  (hip,  the 
owner  is  not  by  this  aft  of  necemty  conftrued  to  have  renounced 
his  property  n  :  much  lefs  can  things  ligan  be  fuppofed  to  be 
abandoned,  fince  the  owner  has  done  all  in  his  power,  to  afTert 
and  retain  his  property.  Thefe  three  are  therefore  accounted  fo 
far  a  diflinct  thing  from  the  former,  that  by  the  king's  grant  to  a 
man  of  wrecks,  things  jetfam,  flotfam,  and  ligan  will  not  pafs  °. 

11  §.  28.  •  ££>'M  enim  res  in  tempe/inte,   hi'andae  na- 

1  2  Inft.  1 68.  IKS  caufa,  cjiciuntur,  bae  domimrum  permanent. 

k  Plowd.  166.  Qjf'a  falarn   ejl,  eas  nan   eo   e.nimo  ejici,  $ucd 

J2]nft.  168.     Bro.  Air.  tit.  Wreck.                guts  habere  n.lit.     Jnjl.  z.  l.   §48. 

81  5  Rep.  106.  '  5  Rep.  108. 

WRE  CKS, 


Ch.  8.  of    PERSONS.  293 

WRECKS,  in  their  legal  acceptation,  are  at  prefent  not  very 
frequent  :  it  rarely  happening  that  every  living  cre.iture  on  board 
periihes ;  and  if  any  ihould  furvive,  it  is  a  very  great  chance, 
fmce  the  improvement  of  commerce,  navigation,  and  correfpon- 
dence,  but  the  owner  will  be  able  to  aflert  his  property  within 
the  year  and  day  limited  by  law.  And  in  order  to  preferve  this 
property  entire  for  him,  and  if  poflible  to  prevent  wrecks  at  all, 
our  laws  have  made  many  very  humane  regulations ;  in  a  fpirit 
quite  oppofite  to  thofe  favage  laws,  which  formerly  prevailed  in 
all  the  northern  regions  of  Europe,  and  a  few  years  ago  were 
ftill  faid  to  fubfift  on  the  coafts  of  the  Baltic  fea,  permitting  the 
inhabitants  to  feize  on  whatever  they  could  get  as  a  lawful  prize; 
or,  as  an  author  of  their  own  exprefles  it,  "  in  naufragorum  miferia 
"  et  calamitate  tanquam  vultures  ad  fraedam  cur r ere  p."  For  by 
the  ftatute  2  Edw.  III.  c.  13.  if  any  mip  be  loft  on  the  more, 
and  the  goods  come  to  land  (fo  as  it  be  not  legal  wreck)  they 
fhall  be  prefently  delivered  to  the  merchants,  they  paying  only  a 
reafonable  reward  to  thofe  that  faved  and  preferved  them,  which 
is  intitled  fafoage.  Alfo  by  the  common  law,  if  any  perfons 
(other  than  the  fheriff )  take  any  goods  fo  caft  on  more,  which 
are  not  legal  wreck,  the  owners  might  have  a  commiffion  to  en- 
quire and  find  them  out,  and  compel  them  to  make  reftitution  q; 
And  by  ftatute  1 2  Ann.  ft.  2.  c.i8.  confirmed  by  4  Geo.  I.  c.[2. 
in  order  to  afllft  the  diftrelfed,  and  prevent  the  fcandalous  illegal 
practices  on  fome  of  our  fea  coafts,  (too  fimilar  to  thofe  on  the 
Baltic)  it  is  enacted,  that  all  head-officers  and  others  of  towns 
near  the  fea  mall,  upon  application  made  to  them,  fummon  as 
many  hands  as  are  neceflary,  and  fend  them  to  the  relief  of  any 
fhip  in  diftrefs,  on  forfeiture  of  ioo/.  and,  in  cafe  of  afliltance 
given,  falvage  mall  be  paid  by  the  owners,  to  be  aiTefled  by  three 
neighbouring  juftices.  All  perfons  that  fecrete  any  goods  fhall 
forfeit  their  treble  value  :  and  if  they  wilfully  do  any  act  whereby 
the  mip  is  loft  or  deftroyed,  by  making  holes  in  her,  ftealing  her 
pumps,  or  otherwife,  they  are  guilty  of  felony,  without  benefit 

P  Stiernh.  He  jure  Siuon.  1.  3.  c.  5.  <>  F.  N.  B.  112. 

of 


294  ¥%e    RIGHTS  BOOK!. 

of  clergy.  Laftly,  by  the  ftatute  26  Geo.  II.  0.19.  plundering 
any  veflel  either  in  diftrefs,  or  wrecked,  and  whether  any  living 
creature  be  on  board  or  not,  (for,  whether  wreck  or  otherwife, 
it  is  clearly  not  the  property  of  the  populace)  fuch  plundering,  I 
fay,  or  preventing  the  efcape  of  any  perfon  that  endeavors  to  fave 
his  life,  or  wounding  him  with  intent  to  deftroy  him,  or  putting 
out  falfe  lights  in  order  to  bring  any  veflel  into  danger,  are  all 
declared  to  be  capital  felonies ;  in  like  manner  as  the  deftroying 
trees,  fteeples,  or  other  ftated  feamarks,  is  punifhed  by  the  ftatute 
8  Eliz,  c.  13.  with  a  forfeiture  of  roo/.  or  outlawry.  More- 
over, by  the  ftatute  of  George  II,  pilfering  any  goods  caft  afhore 
is  declared  to  be  petty  larceny;  and  many  other  falutary  regula- 
tions are  made,  for  the  more  effectually  preferving  mips  of  any 
nation  in  diftrefs r. 

XII.  A  TWELFTH  branch  of  the  royal  revenue,  the  right 
to  mines,  has  it's  original  from  the  king's  prerogative  of  coinage, 
in  order  to  fupply  him  with  materials :  and  therefore  thofe  mines, 
which  are  properly  royal,  and  to  which  the  king  is  entitled  when 
found,  are  only  thofe  of  filver  and  gold  s.  By  the  old  common 
law,  if  gold  or  filver  be  found  in  mines  of  bafe  metal,  according 
to  the  opinion  of  fome  the  whole  was  a  royal  mine,  and  belonged 
to  the  king ;  though  others  held  that  it  only  did  fo,  if  the  quan- 
tity of  gold  or  filver  was  of  greater  value  than  the  quantity  of 
bafe  metal'.  But  now  by  the  ftatutes  i  W.  &  M.  ft.  i.  c.  30. 
and  5  W.  &  M.  c.6.  this  difference  is  made  immaterial ;  it  being 
enacled,  that  no  mines  of  copper,  tin,  iron,  or  lead,  fhall  be 
looked  upon  as  royal  mines,  notwithftanding  gold  or  filver  may 
be  extracted  from  them  in  any  quantities  :  but  that  the  king,  or 
perfons  claiming  royal  mines  under  his  authority,  may  have  the 

*  By  the    civil   law,    to  deftroy  perfons  litan  conftitutions,  puniflied  with  the  utmoft 

fhipwrecked,    or  prevent    their  faving  the  feverity  all  thofe  who  negleifled  to  afiift  any 

fhip,  is  capital.    And  to  fteal  even  a  plank  ihip  in  diftrefs,  or  plundered  any  goods  caft 

from  a  veflel  in  diftrefs,  or  wrecked,  makes  on    fhore.     (  Lindenbrog.   Cod.  LL.  antiqu. 

the  party  liable  to  anfwer  for  the  whole  Ihip  146.  715.) 

and  cargo.   (^.47.9.3.)   The  laws  alfo  of  s   zlnft.  577. 

the  Wifigoths,  and  the  moft  early  Neapo-  l  Plpwd.  366. 

ore, 


•% 

Ch.  8.  of   PERS  ONS.  295 

ore,  (other  than  tin-ore  in  the  counties  of  Devon  and  Cornwall) 
paying  for  the  fame  a  price  ftated  in  the  act.  This  was  an  ex- 
tremely reafonable  law :  for  now  private  owners  are  not  difcou- 
raged  from  working  mines,  through  a  fear  that  they  may  be 
claimed  as  royal  ones;  neither  does  the  king  depart  from  the  jufl 
rights  of  his  revenue,  iince  he  may  have  all  the  precious  metal 
contained  in  the  ore,  paying  no  more  for  it  than  the  value  of  the 
bafe  metal  which  it  is  fuppofed  to  be ;  to  which  bafe  mefal  the 
land-owner  is  by  reafon  and  law  entitled. 

XIII.  To  the  fame  original  may  in  part  be  referred  the  re- 
venue of  treafure-trove  (derived  from  the  French  word,  trover* 
to  find)  called  in  Latin  thefaurns  iwventus,  which  is  where  any 
money  or  coin,  gold,  filver,  plate,  or  bullion,  is  found  hidden  in 
the  earth,  or  other  private  place,  the  owner  thereof  being  un- 
known ;  in  which  cafe  the  treafure  belongs  to  the  king  :  but  if 
he  that  hid  it  be  known,  or  afterwards  found  out,  the  owner 
and  not  the  king  is  entitled  to  it  u.  Alfo  if  it  be  found  in  the 
fea,  or  upon  the  earth,  it  doth  not  belong  to  the  king,  but  the 
finder,  if  no  owner  appears  w.  So  that  it  feems  it  is  the  hiding, 
not  the  abandoning  of  it,  that  gives  the  king  a  property  :  Brafton  * 
defining  it,  in  the  words  of  the  civilians,  to  be  "  vetus  depofitio 
" pecum'ae."  This  difference  clearly  arifes  from  the  different  in- 
tentions, which  the  law  implies  in  the  owner.  A  man,  that  hides 
his  treafure  in  a  fecret  place,  evidently  does  not  mean  to  relin- 
quifh  his  property ;  but  referves  a  right  of  claiming  it  again, 
when  he  fees  occafion ;  and,  if  he  dies  and  the  fecret  alfo  dies 
with  him,  the  law  gives  it  the  king,  in  part  of  his  royal  revenue. 
But  a  man  that  fcatters  his  treafure  into  the  fea,  or  upon  the 
public  furface  of  the  earth,  is  conftrued  to  have  abfolutely  aban- 
doned his  property,  and  returned  it  into  the  common  flock,  with- 
out any  intention  of  reclaiming  it ;  and  therefore  it  belongs,  as 
in  a  fcate  of  nature,  to  the  firft  occupant,  or  finder ;  unlefs  the 
owner  appear  and  affert  his  right,  which  then  proves  that  the  lofs 
was  by  accident,  and  not  with  an  intent  to  renounce  his  property. 

u   3lnft.  13;.    Dalt.  Sheriffs,  c.  16.  *  /.  3.   c.  3.    §.  4. 

w  Britt.  c.i/.    Finch.  L.  177.  FoR- 


296  The    RIGHTS  BOOK!. 

FORMERLY  all  treafure-trove  belonged  to  the  finder y ;  as  was 
alfo  the  rule  of  the  civil  lawz.  Afterwards  it  was  judged  expe- 
dient for  the  purpofes  of  the  irate,  and  particularly  for  the  coinage, 
to  allow  part  of  what  was  fo  found  to  the  king  ;  which  part  was 
affigned  to  be  all  hidden  treafure ;  fuch  as  is  cafually  lojl  and  un- 
claimed, and  alfo  fuch  as  is  defignedly  abandoned,  ftill  remaining 
the  right  of  the  fortunate  finder.  And  that  the  prince  mall  be 
entitled  to  this  hidden  treafure  is  now  grown  to  be,  according  to 
Grotius  %  "jus  commune,  et  quaji  gentium:"  for  it  is  not  only  ob- 
ferved,  he  adds,  in  England,  but  in  Germany,  France,  Spain, 
and  Denmark.  The  finding  of  depoiited  treafure  was  much  more 
frequent,  and  the  treafures  themfelves  more  confiderable,  in  the 
infancy  of  our  conftitution  than  at  prefent.  When  the  Romans, 
and  other  inhabitants  of  the  refpective  countries  which  compofed 
their  empire,  were  driven  out  by  the  northern  nations,  they  con- 
cealed their  money  under-ground  ;  with  a  view  of  reforting  to  it 
again  when  the  heat  of  the  irruption  mould  be  over,  and  the  in- 
vaders driven  back  to  their  defarts.  But,  as  this  never  happened, 
the  treafures  were  never  claimed  ;  and  on  the  death  of  the  owners 
the  fecret  alfo  died  along  with  them.  The  conquering  generals, 
being  aware  of  the  value  of  thefe  hidden  mines,  made  it  highly 
penal  to  fecrete  them  from  the  public  fervice.  In  England  there- 
fore, as  among  the  feudifts b,  the  punifhment  of  fuch  as  concealed 
from  the  king  the  finding  of  hidden  treafure  was  formerly  no  lefs 
than  death ;  but  now  it  is  only  fine  and  imprifonment c. 

XIV.  WAIFS,  bona  inaviata,  are  goods  ftolen,  and  waived 
or  thrown  away  by  the  thief  in  his  flight,  for  fear  of  being  ap- 
prehended. Thefe  are  given  to  the  king  by  the  law,  as  a  punifh- 
ment upon  the  owner,  for  not  himfelf  purfuing  the  felon,  and 
taking  away  his  goods  from  him  d.  And  therefore  if  the  party 
robbed  do  his  diligence  immediately  to  follow  and  apprehend  the 

*  Braflon.  /.  3.  c.  3.    3  Inft.  133.  b  Glanv.  /.  i.  c.  2.    Crag.  i.  i 6.  40. 

1  Ff.  41.  i.  31.  c  3  Inft.  133. 

3  dsjur.  b.  fcf  /.  /.  2.  c.  8.    §.  7.  d  Cro.  Eliz.  694. 

thief 


Ch.  8.  ^/"PERSONS.  297 

thief  (which  is  called  making  fre(hjuzf)  or  do  convict  him  after- 
wards, or  procure  evidence  to  convict  him,  he  {hall  have  his 
goods  again  e.  Waived  goods  do  alfo  not  belong  to  the  king,  till 
feifed  by  fomebody  for  his  ufe ;  for  if  the  party  robbed  can  feife 
them  firft,  though  at  the  diftance  of  twenty  years,  the  king  mail 
never  have  them '.  If  the  goods  are  hid  by  the  thief,  or  left  any 
where  by  him,  fo  that  he  had  them  not  about  him  when  he  fled, 
and  therefore  did  not  throw  them  away  in  his  flight ;  thefe  alfo 
are  not  bona  wavzata,  but  the  owner  may  have  them  again  when 
he  pleafes 6.  The  goods  of  a  foreign  merchant,  though  ftolen 
and  thrown  away  in  flight,  (hall  never  be  waifs h  :  the  reafon 
whereof  may  be,  not  only  for  the  encouragement  of  trade,  but 
alfo  becaufe  there  is  no  wilful  default  in  the  foreign  merchant's 
not  purfuing  the  thief,  he  being  generally  a  ftranger  to  our  laws, 
our  ufages,  and  our  language. 

XV.  ESTRAYS  are  fuch  valuable  animals  as  are  found  wan- 
dering in  any  manor  or  lordihip,  and  no  man  knoweth  the  owner 
of  them ;  in  which  cafe  the  law  gives  them  to  the  king  as  the  gene- 
ral owner  and  lord  paramount  of  the  foil,  in  recompence  for  the 
damage  which  they  may  have  done  therein ;  and  they  now  moft 
commonly  belong  to  the  lord  of  the  manor,  by  fpecial  grant  from 
the  crown.  But  in  order  to  veil  an  abfolute  property  in  the  king 
or  his  grantees,  they  muft  be  proclaimed  in  the  church  and  two 
market  towns  next  adjoining  to  the  place  where  they  are  found ; 
and  then,  if  no  man  claims  them,  after  proclamation  and  a  year 
and  a  day  paffed,  they  belong  to  the  king  or  his  fubilitute  with- 
out redemption  l ;  even  though  the  owner  were  a  minor,  or  un- 
der any  other  legal  incapacity  k.  A  provifion  fimilar  to  which  ob- 
tained in  the  old  Gothic  conftitution,  with  regard  to  all  things 
that  were  found,  which  were  to  be  thrice  proclaimed,  primum 
cor  am  comitibus  et  matoribus  ob^Hs,  deinde  in  proximo  villa  vel  pago, 

'  Finch.  L.  212.  i  Mirr.  c.  3.  §.  19. 

f  Hid.  k  5  Rep.  1 08.  ~&to.Abr.tit.Eftray.   Cro. 

s  5  Rep.  109.  Eliz.  7  i  6. 

h  Fitzh.  Abr.  tit.  Ejiray.  I.  3  Bulftr.  19. 

O  o  pojlremo 


298 


The    RIGHTS 


BOOK  I. 


poftremo  cor  am  ecclefia  vd  judlcio :  and  the  fpace  of  a  year  was  al- 
lowed for  the  owner  to  reclaim  his  property '.  If  the  owner 
claims  them  within  the  year  and  day,  he  muft  pay  the  charges  of 
finding,  keeping,  and  proclaiming  them m.  The  king  or  lord 
has  no  property  till  the  year  and  day  palled  :  for  if  a  lord  keep- 
eth  an  eftray  three  quarters  of  a  year,  and  within  the  year  it 
ftrayeth  again,  and  another  lord  getteth  it,  the  firft  lord  cannot 
take  it  again  n.  Any  heart  may  be  an  eftray,  that  is  by  nature 
tame  or  reclaimable,  and  in  which  there  is  a  valuable  property, 
as  fheep,  oxen,  fwine,  and  horfes,  which  we  in  general  call 
cattle ;  and  fo  Fleta0  defines  it,  pecus  vagans,  quod  nullus  petit, 
fequitur,  vel  ad-vocat.  For  animals  upon  which  the  law  fets  no 
value,  as  a  dog  or  cat,  and  animals  ferae  naturae,  as  a  bear  or 
wolf,  cannot  be  confidered  as  eftrays.  So  fvvans  may  be  eftrays, 
but  not  any  other  fowl p ;  whence  they  are  faid  to  be  royal  fowl. 
The  reafon  of  which  diftindtion  feems  to  be,  that,  cattle  and  fwans 
being  of  a  reclaimed  nature,  the  owner's  property  in  them  is  not 
loft  merely  by  their  temporary  efcape ;  and  they  alfo,  from  their 
intrinfic  value,  are  a  fufiicient  pledge  for  the  expenfe  of  the  lord 
of  the  franchife  in  keeping  them  the  year  and  day.  For  he  that 
takes  an  eftray  is  bound,  fo  long  as  he  keeps  it,  to  find  it  in  pro- 
vifions  and  keep  it  from  damage  q;  and  may  not  ufe  it  by  way  of 
labour,  but  is  liable  to  an  action  for  fo  doing  r.  Yet  he  may  milk 
a  cow,  or  the  like,  for  that  tends  to  the  prefervation,  and  is  for 
the  benefit  of  the  animal s . 

BESIDES  the  particular  reafons  before  given  why  the  king 
mould  have  the  feveral  revenues  of  royal  fifh,  fhipwrecks,  treafure- 
trove,  waifs,  and  eftrays,  there  is  alfo  one  general  reafon  which 
holds  for  them  all ;  and  that  is,  becaufe  they  are  bona  vacantia, 
or  goods  in  which  no  one  elfe  can  claim  a  property.  And  there- 
fore by  the  law  of  nature  they  belonged  to  the  firft  occupant  or 


1  Stiernh.  dejur.  Got  her,  1.  3.  c.  5. 
n  Dalt.  Sh.  79. 
•  Finch.  L.  177. 


7Rep.i7. 

i  Roll.  Abr.  889. 

Cro.  Jac.  147. 

Cro.  Jac.  148.    Noy.  119. 


finder 


Ch.  8.  of    PERSONS.  299 

finder;  and  fo  continued  under  the  imperial  law.  But,  in  fett- 
ling the  modern  constitutions  of  moil  of  the  governments  in 
Europe,  it  was  thought  proper  (to  prevent  that  ftrife  and  con- 
tention, which  the  mere  title  of  occupancy  is  apt  to  create  and 
continue,  and  to  provide  for  the  fupport  of  public  authority  in  a 
manner  the  leafl  burthenfome  to  individuals)  that  thefe  rights 
mould  be  annexed  to  the  fupreme  power  by  the  politive  laws  of 
the  ftate.  And  io  it  came  to  pafs  that,  as  Brafton  exprefles  it f, 
haec ,  quae  nullius  in  bonis  funt,  et  olim  fuerunt  invent  oris  de  jure 
naturali,  jam  efficiuntur  principis  de  jure  gentium. 

XVI.  THE  next  branch  of  the  king's  ordinary  revenue  confifts 
in  forfeitures  of  lands  and  goods  for  offences ;  bona  cotifijcata,  as 
they  are  called  by  the  civilians,  becaufe  they  belonged  to  thejifcus 
or  imperial  treafury ;  or,  as  our  lawyers  term  them,  forisfaEta, 
that  is,  fuch  whereof  the  property  is  gone  away  and  departed  from 
the  owner.  The  true  reafon  and  only  fubftantial  ground  of  any 
forfeiture  for  crimes  confift  in  this;  that  all  property  is  derived 
from  fociety,  being  one  of  thofe  civil  rights  which  are  conferred 
upon  individuals,  in  exchange  for  that  degree  of  natural  freedom, 
which  every  man  muft  facrifke  when  he  enters  into  focial  com- 
munities. If  therefore  a  member  of  any  national  community 
violates  the  fundamental  contract  of  his  affociation,  by  tranf- 
grefling  the  municipal  law,  he  forfeits  his  right  to  fuch  privileges 
as  he  claims  by  that  contradt ;  and  the  ftate  may  very  juftly  re- 
fume  that  portion  of  property,  or  any  part  of  it,  which  the  laws 
have  before  affigned  him.  Hence,  in  every  offence  of  an  atro- 
cious kind,  the  laws  of  England  have  exadled  a  total  confiscation 
of  the  moveables  or  perfonal  eflate ;  and  in  many  cafes  a  perpe- 
tual, in  others  only  a  temporary,  lofs  of  the  offender's  immove- 
ables  or  landed  property ;  and  have  verted  them  both  in  the  king, 
who  is  the  perfon  fuppofed  to  be  offended,  being  the  one  vifible 
magiilrate  in  whom  the  majefty  of  the  public  refides.  The  parti- 
culars of  thefe  forfeitures  will  be  more  properly  recited  when  we 
treat  of  crimes  and  mifdemefnors.  I  therefore  only  mention  them 

1  /.  i.  r.  iz. 

O  o  2  here, 


300  7%e    RIGHTS  BOOK!. 

here,  for  the  fake  of  regularity,  as  a  part  of  the  cenfus  regalis ; 
and  Shall  poStpone  for  the  prefent  the  farther  confederation  of  all 
forfeitures,  excepting  one  fpecies  only,  which  arifes  from  the 
misfortune  rather  than  the  crime  of  the  owner,  and  is  called  a 

deodand, 

v 

B  Y  this  is  meant  whatever  perfonal  chattel  is  the  immediate 
occafion  of  the  death  of  any  reafonable  creature ;  which  is  for- 
feited to  the  king,  to  be  applied  to  pious  ufes,  and  distributed  in 
alms  by  his  high  almoner";  though  formerly  deStined  to  a 
more  SuperStitious  purpofe.  It  feems  to  have  been  originally  de- 
figned,  in  the  blind  days  of  popery,  as  an  expiation  for  the  fouls 
of  fuch  as  were  fnatched  away  by  fudden  death ;  and  for  that 
purpofe  ought  properly  to  have  been  given  to  holy  church  w ;  in 
the  fame  manner,  as  the  apparel  of  a  Stranger  who  was  found 
dead  was  applied  to  purchafe  maSTes  for  the  good  of  his  foul. 
And  this  may  account  for  that  rule  of  law,  that  no  deodand  is 
due  where  an  infant  under  the  years  of  difcretion  is  killed  by  a 
fall  from  a  cart,  or  horfe,  or  the  like,  not  being  in  motion  xj 
whereas,  if  an  adult  perfon  falls  from  thence  and  is  killed,  the 
thing  is  certainly  forfeited.  For  the  reafon  given  by  fir  Matthew 
Hale  feems  to  be  very  inadequate,  viz.  becaufe  an  infant  is  not 
able  to  take  care  of  himfelf :  for  why  Should  the  owner  fave  his 
forfeiture,  on  account  of  the  imbecillity  of  the  child,  which 
ought  rather  to  have  made  him  more  cautious  to  prevent  any  ac- 
cident of  mifchief  ?  The  true  ground  of  this  rule  feems  rather 
to  be,  that  the  child,  by  reafon  of  it's  want  of  difcretion,  is 
prefumed  incapable  of  actual  fin,  and  therefore  needed  no  deo- 
dand to  purchafe  propitiatory  maSfes  :  but  every  adult,  who  dies 
in  adlual  fin,  flood  in  need  of  fuch  atonement,  according  to  the 
humane  fuperflition  of  the  founders  of  the  Englifh  law. 

THUS  ftands  the  law,  if  a  perfon  be  killed  by  a  fall  from  a 
thing  Standing  Still.    But  if  a  horfe,  or  ox,  or  other  animal,  of 

u  i  Hal.  P.  0.419.    Fleta.  /.  I.  c.  25.       P.  C.  20,  21. 

v  Yx.ih.Abr.  tit. Enditement.pl.  27.  Staunf.          *  3  Inft.  57.     I  Hal.  P.  C.  422. 

his 


Ch.  8.  of    PERSONS.  301 

his  own  motion,  kill  as  well  an  infant  as  an  adult,  or  if  a  cart 
run  over  him,  they  ihall  in  either  cafe  be  forfeited  as  deodands y ; 
which  is  grounded  upon  this  additional  reafon,  that  fuch  misfor- 
tunes are  in  part  owing  to  the  negligence  of  the  owner,  and  there- 
fore he  is  properly  punifhed  by  fuch  forfeiture.  A  like  punifh- 
ment  is  in  like  cafes  inflicted  by  the  mofaicul  law  z :  "if  an  ox 
"  gore  a  man  that  he  die,  the  ox  mall  be  ftoned,  and  his  flefh 
"  fhall  not  be  eaten."  And  among  the  Athenians  %  whatever  was 
the  caufe  of  a  man's  death,  by  falling  upon  him,  was  extermi- 
nated or  cafl  out  of  the  dominions  of  the  republic.  Where  a 
thing,  not  in  motion,  is  the  occafion  of  a  man's  death,  that  part 
only  which  is  the  immediate  caufe  is  forfeited ;  as  if  a  man  be 
climbing  up  a  wheel,  and  is  killed  by  falling  from  it,  the  wheel 
alone  is  a  deodandb:  but,  wherever  the  thing  is  in  motion,  not 
only  that  part  which  immediately  gives  the  wound,  (as  the  wheel, 
which  runs  over  his  body)  but  all  things  which  move  with  it  and 
help  to  make  the  wound  more  dangerous  (as  the  cart  and  loading, 
which  increafe  the  preflure  of  the  wheel)  are  forfeited  c.  It  mat- 
ters not  whether  the  owner  were  concerned  in  the  killing  or  not  •, 
for  if  a  man  kills  another  with  my  fword,  the  fword  is  forfeited  d 
as  an  accurfed  thing6.  And  therefore,  in  all  indictments  for  homi- 
cide, the  inftrument  of  death  and  the  value  are  prefented  and 
found  by  the  grand  jury  (as,  that  the  ftroke  was  given  with  a 
certain  penknife,  value  fixpence)  that  the  king  or  his  grantee  may 
claim  the  deodand  :  for  it  is  no  deodand,  unlefs  it  be  prefented 
as  fuch  by  a  jury  of  twelve  men  f.  No  deodands  are  due  for  ac- 
cidents happening  upon  the  high  fea,  that  being  out  of  the  jurif- 
dicTion  of  the  common  law  :  but  if  a  man  falls  from  a  boat  or 

1  Omni  a,  quae  moment  ad  mortem,  funt  Deo     tatur  ;    -vel  ex  aediBus  meis  cadat,  <vel  ir.cidat 
danda.     Brafton.  /.  3.  c.  5.  in  puteum  meum*  quantum<vis  teflum  et  munition, 

2  Exod.  xxi.  28.  <vel  in  cataraflam,    et  fub  molendino  meo  con- 
*•  Aefchin.  contr.  Ctejiph.  fringatur,   iffe    aliqua  multta  plettar;    ut  in 
b   I  Hal.  P.  C.  422.  parte  infelicitatis  tneae  numerctnr,   babuijje  <vel 
c    I  Hawk.   P.  C.   0.26.  aedifcaje  aliquoti  quo  homo  perirct.    Stiernhook 
""•  A  fimilar  rule  obtained  among  the  an-     de  jure  Goth.  I.  3.  c.^.. 

tient  Goths.     Si  qitis,   me  nefciente,   jttoamque         e  Dr  &  St.  d.  2.  C,  51. 
meo  telo  vel  infrumenlo  in  femiciem  fuam  alu-         l  3  Inft.  57. 

fliip 


302  The    RIGHTS  BooicJ. 

mip  in  frefli  water,  and  is  drowned,  it  hath  been  faid,  that  the 
veflel  and  cargo  are  in  ftrictnefs  of  law  a  deodand  s.  But  juries 
have  of  late  very  frequently  taken  upon  themfelves  to  mitigate 
thefe  forfeitures,  by  finding  only  fome  trifling  thing,  or  part  of 
an  intire  thing,  to  have  been  the  occafion  of  the  death.  And  in 
fuch  cafes,  although  the  finding  of  the  jury  be  hardly  warrant- 
able by  law,  the  court  of  king's  bench  hath  generally  refufed  to 
interfere  on  behalf  of  the  lord  of  the  franchife,  to  afiift  fo  odious 
a  claim  h. 

DEODAND  s,  and  forfeitures  in  general,  as  well  as  wrecks, 
treafure  trove,  royal  fifh,  mines,  waifs,  and  eftrays,  may  be  granted 
by  the  king  to  particular  fubjecls,  as  a  royal  franchife  :  and  in- 
deed they  are  for  the  moft  part  granted  out  to  the  lords  of  manors, 
or  other  liberties ;  to  the  perverfion  of  their  original  defign. 

XVII.  ANOTHER   branch  of  the  king's  ordinary  revenue 
arifes  from  efcheats  of  lands,  which  happen  upon  the  defect  of 
heirs  to  fucceed  to  the  inheritance ;   whereupon  they  in  general 
revert  to  and  veft  in  the  king,  who  is  efteemed,  in  the  eye  of  the 
law,    the  original  proprietor  of  all  the  lands  in  the  kingdom. 
But  the  difcuffion  of  this  topic  more  properly  belongs  to  the  fe- 
cond  book  of  thefe  commentaries,  wherein  we  mail  particularly 
confider  the  manner  in  which  lands  may  be  acquired  or  loft  by 
efcheat. 

XVIII.  I  PROCEED    therefore  to  the  eighteenth  and   lafl 
branch  of  the  king's  ordinary  revenue ;   which  confifts  in  the 
cuftody  of  idiots,  from  whence  we  mall  be  naturally  led  to  con- 
fider alfo  the  cuftody  of  lunatics. 

A  N  idiot,  or  natural  fool,  is  one  that  hath  had  no  underftand- 
ing  from  his  nativity ;  and  therefore  is  by  law  prefumed  never 
likely  to  attain  any.  For  which  reafon  the  cuftody  of  him  and 

8310(1.58.    i  Hal.  P.  €.423.    Molloyafe         b  Fofter  of  homicide.  266. 
jur.  maritim.  2.  225. 

of 


Ch.  8.  of    PERSONS.  303 

of  his  lands  was  formerly  veiled  in  the  lord  of  the  fee';  (and 
therefore  ftill,  by  fpecial  cuftom,  in  fome  manors  the  lord  mall 
have  the  ordering  of  idiot  and  lunatic  copyholders ' )  but,  by  rea- 
Ibn  of  the  manifold  abufes  of  this  power  by  fubjefts,  it  was  at 
laft  provided  by  common  confent,  that  it  mould  be  given  to  the 
king,  as  the  general  confervator  of  his  people,  in  order  to  pre- 
vent the  idiot  from  wafting  his  eftate,  and  reducing  himfelf  and 
his  heirs  to  poverty  and  diftrefs  k :  this  fifcal  prerogative  of  the 
king  is  declared  in  parliament  by  ftatute  17  Edw.  II.  c.  9.  which 
diredls  (in  affirmance  of  the  commen  law1,)  that  the  king  Ihall 
have  ward  of  the  lands  of  natural  fools,  taking  the  profits  with- 
out wafte  or  deftrudtion,  and  fliall  find  them  necefTaries ;  and  af- 
ter the  death  of  fuch  idiots  he  fliall  render  the  eftate  to  the  heirs; 
in  order  to  prevent  fuch  idiots  from  aliening  their  lands,  and  their 
heirs  from  being  difmherited» 

B  Y  the  old  common  law  there  is  a  writ  de  idiota  inquircndo,  to 
enquire  whether  a  man  be  an  idiot  or  not m :  which  mult  be 
tried  by  a  jury  of  twelve  men  ;  and,  if  they  find  him  purns  idiota, 
the  profits  of  his  lands,  and  the  cuftody  of  his  perfon  may  be 
granted  by  the  king  to  fome  fubject,  who  has  intereft  enough  to 
obtain  them  n.  This  branch  of  the  revenue  hath  been  long  con- 
fidered  as  a  hardship  upon  private  families ;  and  fo  long  ago  as 
in  the  8  Jac.  I.  it  was  under  the  confideration  of  parliament, 
to  vefl  this  cuftody  in  the  relations  of  the  party,  and  to  fettle  an 
equivalent  on  the  crown  in  lieu  of  it ;  it  being  then  propofed  to 
fliare  the  fame  fate  with  the  flavery  of  the  feodal  tenures,  which 
has  been  fmce  abolimed  °.  Yet  few  inftances  can  be  given  of  the 
opprerlive  exertion  of  it,  fince  it  feldom  happens  that  a  jury  finds 
a  man  an  idiot  a  nativitate,  but  only  non  compos  mentis  from  fome 
particular  time;  which  has  an  operation  very  different  in  point  of 
law. 

i  Flet.  /.  i.  c.  1 1.  §.  10.  n  This  power,  though  of  late  very  rarely 

'  Dyer.  302.     Hutt.  17.     Noy.  27.  exerted,  is  ftill  alluded  to  ir.  common  fpeech, 

k  F.  N.  6.232.  by  that  ufual  expreflion  of  begging  a  man 

1  4  Rep.  126.  for  a  fool. 

31  F.  N.  6.232.  °  4lnft.  203.    Com.  Journ.  1610. 

A    MAN 


304  T?je    RIGHTS  BOOK!. 

A  WAN  is  not  an  idiot  p,  if  he  hath  any  glimmering  of  rea- 
fon,  fo  that  he  can  tell  his  parents,  his  age,  or  the  like  common 
matters.  But  a  man  who  is  born  deaf,  dumb,  and  blind,  is  looked 
upon  by  the  law  as  in  the  fame  ftate  with  an  idiot  q  ;  he  being 
fuppofed  incapable  of  any  underftanding,  as  wanting  all  thole 
lenfes  which  furnifh  the  human  mind  with  ideas. 

A  LUNATIC,  or  non  compos  mentis,  is  one  who  hath  had  un- 
derftanding, but  by  difeafe,  grief,  or  other  accident  hath  loft  the 
ufe  of  his  reafon.  A  lunatic  is  indeed  properly  one  that  hath  lu- 
cid intervals  ;  fometimes  enjoying  his  fenfes,  and  fometimes  not, 
and  that  frequently  depending  upon  the  change  of  the  moon. 
But  under  the  general  name  of  non  compos  mentis  (which  fir  Ed- 
ward Coke  fays  is  the  moft  legal  namer)  are  comprized  not  only 
lunatics,  but  perfons  under  frenzies  ;  or  who  lofe  their  intellects 
by  difeafe  ;  thofe  that  grow  deaf,  dumb,  and  blind,  not  being 
born  fo  ;  or  fuch,  in  fhort,  as  are  judged  by  the  court  of  chancery 
incapable  of  conducting  their  own  affairs.  To  thefe  alfo,  as  well 
as  idiots,  the  king  is  guardian,  but  to  a  very  different  purpofe. 
For  the  law  always  imagines,  that  thefe  accidental  misfortunes 
may  be  removed  ;  and  therefore  only  conftitutes  the  crown  a 
truftee  for  the  unfortunate  perfons,  to  protect  their  property,  and 
to  account  to  them  for  all  profits  received,  if  they  recover,  or 
after  their  deceafe  to  their  reprefentatives.  And  therefore  it  is 
declared  by  the  ftatute  lyEdw.  II.  c.  10.  that  the  king  mall 
provide  for  the  cuftody  and  fuftentation  of  lunatics,  and  preferve 
their  lands  and  the  profits  of  them,  for  their  ufe,  when  they 
come  to  their  right  mind  :  and  the  king  mail  take  nothing  to  his 
own  ufe  ;  and  if  the  parties  die  in  fuch  eftate,  the  reiidue  fliall 
be  diftributed  for  their  fouls  by  the  advice  of  the  ordinary,  and 
of  courfe  (by  the  fubfequent  amendments  of  the  law  of  admi- 
niftrations)  mall  now  go  to  their  executors  or  adminiftrators. 


F.  N.B.  233.  '   i  InlL  246. 

Co.  Litt.  42.    Fleta.  /.  6.  c.  40. 


THE 


Ch.  8.  of    PERSONS.  305 

THE  method  of  proving  a  perfon  non  compos  is  very  fimilar  to 
that  of  proving  him  an  idiot.    The  lord  chancellor,  to  whom, 
by  fpecial  authority  from  the  king,   the  cuftody  of  idiots  and 
lunatics  is  intruded5,  upon  petition  or  information,  grants  a  com- 
miffion  in  nature  of  the  writ  de  idiota  inquirendo,  to  enquire  into 
the  party's  ftate  of  mind;   and  if  he  be  found  non  compos,  he 
ufually  commits  the  care  of  his  perfon,  with  a  fuitable  allowance 
for  his  maintenance,  to  fome  friend,  who  is  then  called  his  com- 
mittee.    However,  to  prevent  fmifter  practices,  the  next  heir  is 
feldom  permitted  to  be  this  committee  of  the  perfon ;  becaufe  it 
is  his  intereft  that  the  party  mould  die.     But,  it  hath  been  faid, 
there  lies  not  the  fame  objection  againft  his  next  of  kin,  provided 
he  be  not  his  heir ;  for  it  is  his  intereft  to  preferve  the  lunatic's 
life,  in  order  to  increafe  the  perfonal  eftate  by  favings,  which  he 
or  his  family  may  hereafter  be  entitled  to  enjoy '.    The  heir  is 
generally  xmade  the  manager  or  committee  of  the  eftate,  it  being 
clearly  his  intereft  by  good  management  to  keep  it  in  condition  ; 
accountable  however  to  the  court  of  chancery,  and  to  the  non 
compos  himfelf,   if  he  recovers ;   or  otherwife,   to  his  admini- 
ftrators. 

I  N  this  care  of  idiots  and  lunatics  the  civil  law  agrees  with 
ours  ;  by  afllgning  them  tutors  to  protecl  their  perfons,  and  cu- 
rators to  manage  their  eftates.  But  in  another  inftance  the  Ro- 
man law  goes  much  beyond  the  Englifli.  For,  if  a  man  by  no- 
torious prodigality  was  in  danger  of  wafting  his  eftate,  he  was 
looked  upon  as  non  compos,  and  committed  to  the  care  of  curators 
or  tutors  by  the  praetor".  And  by  the  laws  of  Solon  fuch  pro- 
digals were  branded  with  perpetual  infamy  w.  But  with  us,  when 
a  man  on  an  inqueft  of  idiocy  hath  been  returned  an  unthrift  and 

•  3  P.  Wm!.  108.  fando  profuiidit,    curaterem  ei  dare,   exemplt 
1  zP.W"".  638.                                                 furio/i :    et   tamdiu  erunt   ambo    in  curationc, 

•  Solent  prattores,  Ji  talent  hominem  inve-     quamJiu  -vel  furiofus  jaititatem,  vet  ills  bones 
tterint,   qui  neque  tempus  neque  finem  expenfa-     mares,  receperit.    Ff.  27.  IO.  I. 

rum  babet,  fed  bona  fua  dilactramto  tt  dijjl-         w  Potter.  Antiqu.  b.  i.  c.  26. 

P  p  not 


306  The    RIGHTS  BOOK!. 

not  an  idiot*,  no  farther  proceedings  have  been  had.  And  the 
propriety  of  the  practice  itfelf  feems  to  be  very  queftionable.  It 
was  doubtlefs  an  excellent  method  of  benefiting  the  individual, 
and  of  preferving  eftates  in  families  ;  but  it  hardly  feems  calcu- 
lated for  the  genius  of  a  free  nation,  who  claim  and  exercife  the 
liberty  of  uiing  their  own  property  as  they  pleafe.  "  Sic  utere 
"  tuo,  lit  alienum  non  laedas,"  is  the  only  reftriclion  our  laws  have 
given  with  regard  to  oeconomical  prudence.  And  the  frequent 
circulation  and  transfer  of  lands  and  other  property,  which  can- 
not be  effected  without  extravagance  fomewhere,  are  perhaps  not 
a  little  conducive  towards  keeping  our  mixed  conftitution  in  it's 
due  health  and  vigour. 

TH  is  may  fuffice  for  a  fliort  view  of  the  king's  ordinary  re- 
venue, or  the  proper  patrimony  of  the  crown ;  which  was  very 
large  formerly,  and  capable  of  being  increafed  to  a  magnitude 
truly  formidable :  for  there  are  very  few  eftates  in  the  kingdom, 
that  have  not,  at  fome  period  or  other  fince  the  Norman  con- 
queft,  been  vefted  in  the  hands  of  the  king  by  forfeiture,  efcheat, 
or  otherwife.  But,  fortunately  for  the  liberty  of  the  fubjecl,  this 
hereditary  landed  revenue,  by  a  feries  of  improvident  manage- 
ment, is  funk  almoft  to  nothing ;  and  the  cafual  profits,  ariiing 
from  the  other  branches  of  the  cenfus  regalis,  are  likewife  almoft 
all  of  them  alienated  from  the  crown.  In  order  to  fupply  the 
deficiences  of  which,  we  are  now  obliged  to  have  recourfe  to 
new  methods  of  railing  money,  unknown  to  our  early  anceftors  ; 
which  methods  conftitute  the  king's  extraordinary  revenue.  For, 
the  public  patrimony  being  got  into  the  hands  of  private  fub- 
jedls,  it  is  but  reafonable  that  private  contributions  mould  fupply 
the  public  fervice.  Which,  though  it  may  perhaps  fall  harder 
upon  fome  individuals,  whofe  anceftors  have  had  no  mare  in  the 
general  plunder,  than  upon  others,  yet,  taking  the  nation  through- 
out, it  amounts  to  nearly  the  fame ;  provided  the  gain  by  the 
extraordinary,  mould  appear  to  be  no  greater  than  the  lofs  by  the 
ordinary,  revenue.  And  perhaps,  if  every  gentleman  in  the  king- 

*  Bro.  Air.  tit.  Ideal.  4. 

dom 


Ch.  8.  0/"    PERSONS.  307 

dom  was  to  be  ftripped  of  fuch  of  his  lands  as  were  formerly 
the  property  of  the  crown ;  was  to  be  again  fubje<5l  to  the  in- 
conveniences of  purveyance  and  pre-emption,  the  opprefiion  of 
foreft  laws,  and  the  flavery  of  feodal  tenures  ;  and  was  to  refign 
into  the  king's  hands  all  his  royal  franchifes  of  waifs,  wrecks, 
eftrays,  treafure-trove,  mines,  deodands,  forfeitures,  and  the  like  : 
he  would  find  himfelf  a  greater  lofer,  than  by  paying  his  quota 
to  fuch  taxes,  as  are  neceffary  to  the  fupport  of  government. 
The  thing  therefore  to  be  wifhed  and  aimed  at  in  a  land  of  li- 
berty, is  by  no  means  the  total  abolition  of  taxes,  which  would 
draw  after  it  very  pernicious  confequences,  and  the  very  fuppo- 
fition  of  which  is  the  height  of  political  abfurdity.  For  as  the 
true  idea  of  government  and  magiftracy  will  be  found  to  confift 
in  this,  that  fome  few  men  are  deputed  by  many  others  to  prefide 
over  public  affairs,  fo  that  individuals  may  the  better  be  en- 
abled to  attend  their  private  concerns ;  it  is  neceffary  that  thofe 
individuals  fhould  be  bound  to  contribute  a  portion  of  their  pri- 
vate gains,  in  order  to  fupport  that  government,  and  reward  that 
magiftracy,  which  protects  them  in  the  enjoyment  of  their  re- 
fpective  properties.  But  the  things  to  be  aimed  at  are  wifdom  and 
moderation,  not  only  in  granting,  but  alfo  in  the  method  of  rai- 
ling, the  neceffary  fupplies  ;  by  contriving  to  do  both  in  fuch  a 
manner  as  may  be  mod  conducive  to  the  national  welfare,  and  at 
the  fame  time  moft  confident  with  oeconomy  and  the  liberty  of 
the  fubjedl ;  who,  when  properly  taxed,  contributes  only,  as  was 
before  obfervedy,  fome  part  of  his  property,  in  order  to  enjoy 
the  reft. 

TH  E  s  E  extraordinary  grants  are  ufually  called  by  the  fynony- 
mous  names  of  aids,  fublidies,  and  fupplies ;  and  are  granted, 
we  have  formerly  feen  %  by  the  commons  of  Great  Britain,  in 
parliament  affembled  :  who,  when  they  have  voted  a  fupply  to  his 
majefty,  and  fettled  the  quantum  of  that  fupply,  ufually  refolve 
themfelves  into  what  is  called  a  committee  of  ways  and  means, 
to  confider  of  the  ways  and  means  of  railing  the  fupply  fo  voted. 

1  pag.  281.  z  pag.  169. 

P  p  2  And 


3°8  TJje    RIGHTS  BOOK  I. 

And  in  this  committee  every  member  (though  it  is  looked  upon 
as  the  peculiar  province  of  the  chancellor  of  the  exchequer)  may 
propofe  fuch  fcheme  of  taxation  as  he  thinks  will  be  leaft  detri- 
mental to  the  public.  The  refolutions  of  this  committee  (when 
approved  by  a  vote  of  the  houfe)  are  in  general  efteemed  to  be 
(as  it  were)  final  and  conclufive.  For,  though  the  fupply  can- 
not be  actually  raifed  upon  the  fubjecT:  till  directed  by  an  aft  of 
the  whole  parliament,  yet  no  monied  man  will  fcruple  to  advance 
to  the  government  any  quantity  of  ready  cafh,  on  the  credit  of  a 
bare  vote  of  the  houfe  of  commons,  though  no  law  be  yet  palled 
to  eftablifh  it. 

TH  E  taxes,  which  are  raifed  upon  the  fubject,  are  either  an- 
nual or  perpetual.  The  ufual  annual  taxes  are  thofe  upon  land 
and  malt. 

I.  TH  E  land  tax,  in  it's  modern  mape,  has  fuperfeded  all  the 
former  methods  of  rating  either  property,  or  perfons  in  refpect  of 
their  property,  whether  by  tenths  or  fifteenths,  fubfidies  on  land, 
hydages,  fcutages,  or  talliages  ;  a  fhort  explication  of  which  will 
greatly  affift  us  in  underftanding  our  antient  laws  and  hiftory. 

TENTHS,  and  fifteenths3,  were  temporary  aids  ifluing  out  of 
perfonal  property,  and  granted  to  the  king  by  parliament.  They 
were  formerly  the  real  tenth  or  fifteenth  part  of  all  the  moveables 
belonging  to  the  fubjecT: ;  when  fuch  moveables,  or  perfonal  ef- 
tates,  were  a  very  different  and  a  much  lefs  confiderable  thing 
than  what  they  ufually  are  at  this  day.  Tenths  are  faid  to  have 
been  firft  granted  under  Henry  the  fecond,  who  took  advantage 
of  the  fafliionable  zeal  for  croifades  to  introduce  this  new  taxa- 
tion, in  order  to  defray  the  expenfe  of  a  pious  expedition  to  Pa- 
lefline,  which  he  really  or  feemingly  had  projected  againft  Sala- 
dine  emperor  of  the  Saracens;  whence  it  was  originally  denomi- 
nated the  Saladine  tenth  b.  But  afterwards  fifteenths  were  more 
ufually  granted  than  tenths.  Originally  the  amount  of  thefe  taxes 

»  2lnft-77.    4lnfl.  34.  b  Hoved,  A.D.  1 188.  Carte.i^ip.  Hume.i.szp. 

was 


Ch.  8.  of    PERSONS.  309 

was  uncertain,  being  levied  by  afTeflments  new  made  at  every  frefh 
grant  of  the  commons,  a  commifTion  for  which  is  prelerved  by 
Matthew  Paris0:  but  it  was  at  length  reduced  to  a  certainty  in  the 
eighth  year  of  Edward  III,  when,  by  virtueof  the  king's  commiffion, 
new  taxations  were  made  of  every  townmip,  borough,  and  city 
in  the  kingdom,  and  recorded  in  the  exchequer  ;  which  rate  was,, 
at  the  time,  the  fifteenth  part  of  the  value  of  every  townfhip,, 
the  whole  amounting  to  about  290007.  and  therefore  it  ftill  kept 
up  the  name  of  a  fifteenth,  when,  by  the  alteration  of  the  value 
of  money  and  the  encreafe  of  perfonal  property,  things  came  to 
be  in  a  very  different  fituation.  So  that  when,  of  later  years,  the 
commons  granted  the  king  a  fifteenth,  every  parifh  in  England 
immediately  knew  their  proportion  of  it;  that  is,  the  fame  identical 
fum  that  was  aflefled  by  the  fame  aid  in  the  eighth  of  Edward  III ; 
and  then  raifed  it  by  a  rate  among  themfelves,  and  returned  it 
into  the  royal  exchequer.. 

TH  E  other  antient  levies  were  in  the  nature  of  a  modern  land 
tax  :  for  we  may  trace  up  the  original  of  that  charge  as  high  as 
to  the  introduction  of  our  military  tenures  d ;  when  every  tenant 
of  a  knight's  fee  was  bound,  if  called  upon,  to  attend  the  king 
in  his  army  far  forty  days  in  every  year.  But  this  perfonal  at- 
tendance growing  troublefome  in  many  refpedls,  the  tenants  found, 
means  of  compounding  for  it,  by  firft  fending  others  in  their 
ftead,  and  in  procefs  of  time  by  making  a  pecuniary  fatisfaction 
to  the  crown  in  lieu  of  it.  This  pecuniary  fatisfaction  at  laft  came 
to  be  levied  by  affeffments,  at  fo  much  for  every  knight's  fee, 
under  the  name  of  fcutages ;  which  appear  to  have  been  levied 
for  the  firft  time  in  the  .fifth  year  of  Henry  the  fecond,  on  ac- 
count of  his  expedition  to  Touloufe,  and  were  then  (I  appre- 
hend) mere  arbitrary  compofitions,  as  the  king  and  the  fubjecl: 
couid  agree.  But  this  precedent  being  afterwards  abuled  into  a 
means  of  oppreflion,  (by  levying  fcutages  on  the  landholders  by 
the  royal  authority  only,  whenever  our  kings  went  to  war,  in  or- 

c  A.  D.  1232.  d  See  the  fecond  book  of  thefe  commen- 

taries. 

der 


310  Tloe    RIGHTS  BOOK!. 

der  to  hire  mercenary  troops  and  pay  their  contingent  expenfes) 
it  became  thereupon  a  matter  of  national  complaint ;  and  king 
John  was  obliged  to  promife  in  his  magna  cartae,  that  no  fcutage 
mould  be  impofed  without  the  confent  of  the  common  council 
of  the  realm.  This  claufe  was  indeed  omitted  in  the  charters  of 
Henry  III,  where f  we  only  find  it  ftipulated,  that  fcutages  mould 
be  taken  as  they  were  ufed  to  be  in  the  time  of  king  Henry  the 
fecond.  Yet  afterwards,  by  a  variety  of  flatutes  under  Edward  I 
and  his  grandfon  l,  it  was  provided,  that  the  king  mall  not  take 
any  aids  or  talks,  any  talliage  or  tax,  but  by  common  afient 
of  the  great  men  and  commons  in  parliament. 

O  F  the  fame  nature  with  fcutages  upon  knights-fees  were  the 
arTefTments  of  hydage  upon  all  other  lands,  and  of  talliage  upon 
cities  and  burghs  h.  But  they  all  gradually  fell  into  difufe,  upon 
the  introduction  of  fubfidies,  about  the  time  of  king  Richard  II 
and  king  Henry  IV.  Thefe  were  a  tax,  not  immediately  impo- 
fed upon  property,  but  upon  perfons  in  refpect  of  their  reputed 
eftates,  after  the  nominal  rate  of  4  s.  in  the  pound  for  lands,  and 
2  s.  6  d.  for  goods  ;  and  for  thofe  of  aliens  in  a  double  propor- 
tion. But  this  afieflment  was  alfo  made  according  to  an  antient 
valuation  ;  wherein  the  computation  was  fo  very  moderate,  and 
the  rental  of  the  kingdom  was  fuppofed  to  be  fo  exceeding  low, 
that  one  fubfidy  of  this  fort  did  not,  according  to  fir  Edward 
Coke ',  amount  to  more  than  70000  /.  whereas  a  modern  land 
tax  at  the  fame  rate  produces  two  millions.  It  was  antiently  the 
rule  never  to  grant  more  than  one  fubfidy,  and  two  fifteenths  at 
a  time  ;  but  this  rule  was  broke  through  for  the  firft  time  on  a 
very  preffing  occafion,  the  Spanifh  invafion  in  1588  ;  when  the 
parliament  gave  queen  Elizabeth  two  fubfidies  and  four  fifteenths. 
Afterwards,  as  money  funk  in  value,  more  fubfidies  were  given ; 
and  we  have  an  inftance  in  the  firil  parliament  of  1640,  of  the 
king's  defiring  twelve  fubfidies  of  the  commons,  to  be  levied  in 

'•cap.  14.  c.i.     14  Edw.  III.  ft.  2.  c.  i. 

f  9  Hen.  III.  c.  37.  h  Madox.  hift.  exch.  480. 

s  25  Edw.  I.  c.  5  &  6.    34Edw.  I.  fl-4-         s  411111.33. 

three 


Ch.  8.  of    PERSONS.  311 

three  years;  which  was  looked  upon  as  a  ftartling  propofal :  though 
lord  Clarendon  tells  usk,  that  the  fpeaker,  ferjeant  Glanvile,  made 
it  manifeft  to  the  houfe,  how  very  inconfiderable  a  fum  twelve 
fubfidies  amounted  to,  by  telling  them  he  had  computed  what  he 
was  to  pay  for  them ;  and,  when  he  named  the  fum,  he  being 
known  to  be  polTefTed  of  a  great  eftate,  it  feemed  not  worth  any 
farther  deliberation.  And  indeed,  upon  calculation,  we  mail  find, 
that  the  total  amount  of  thefe  twelve  fublidies,  to  be  raifed  in 
three  years,  is  lefs  than  what  is  now  railed  in  one  year,  by  a 
land  tax  of  two  Shillings  in  the  pound. 

TH  E  grant  of  fcutages,  talliages,  or  fublidies  by  the  commons 
did  not  extend  to  fpiritual  preferments ;  thofe  being  ufually  taxed 
at  the  fame  time  by  the  clergy  themfelves  in  convocation ;  which 
grants  of  the  clergy  were  confirmed  in  parliament,   otherwife 
they  were  illegal,  and  not  binding  ;   as  the  fame  noble  writer  ob- 
ferves  of  the  fublidies  granted  by  the  convocation,  who  continued 
fitting  after  the  dilfolution  of  the  firfl:  parliament  in  1640.     A 
fubildy  granted  by  the  clergy  was  after  the  rate  of  4^.   in  the 
pound  according  to  the  valuation  of  their  livings  in  the  king's 
books;  and  amounted,  fir  Edward  Coke  tells  us1,  to  about  20000 L 
While  this  cuilom  continued,  convocations  were  wont  to  fit  as 
frequently  as  parliaments  :    but  the  lafb  fubfidies,  thus  given  by 
the  clergy,  were  thofe  confirmed  by  ftatute  15  Car.  II.  cap.  10. 
fince  which  another  method  of  taxation  has  generally  prevailed, 
which  takes  in  the  clergy  as  well  as  the  laity ;  in  recompenfe  for 
which  the  beneficed  clergy  have  from  that  period  been  allowed  to 
vote  at  the  elections  of  knights  of  the  fhirem;  and  thenceforward 
alfo  the  practice  of  giving  ecclefiaftical  fubfidies  hath  fallen  into 
total  difufe. 

THE  lay  fubfidy  was  ufually  raifed  by  commiflioners  appointed 
by  the  crown,  or  the  great  officers  of  ftate  :  and  therefore  in  the 
beginning  of  the  civil  wars  between  Charles  I  and  his  parliament, 

k  Hift.  b.  2.  -»  Dalt.  of  flieriffs,  418.     Gilb.  hift.  of 

1  4lnft.  33.  exch.  c,  4. 

the 


312  The    RIGHTS  Bo  OK  I. 

the  latter,  having  no  other  fufficient  revenue  to  fupport  them- 
felves  and  their  meafures,  introduced  the  practice  of  laying  weekly 
and  monthly  afleirments11  of  a  fpecific  fum  upon  the  feveral  coun- 
ties of  the  kingdom ;  to  be  levied  by  a  pound  rate  on  lands  and 
perfonal  eftates  :  which  were  occafionally  continued  during  the 
whole  ufurpation,  fometimes  at  the  rate  of  1 20000 /.  a  month  ; 
fometimes  at  inferior  rates  °.  After  the  reftoration  the  antient 
method  of  granting  fubfidies,  inftead  of  fuch  monthly  affefTments, 
was  twice,  and  twice  only,  renewed  ;  viz.  in  1663,  when  four 
fubfidies  were  granted  by  the  temporal ty,  and  four  by  the  clergy  •, 
and  in  1670,  when  800000 /.  was  raifed  by  way  of  fublidy, 
which  was  the  laft  time  of  raifing  fupplies  in  that  manner.  For, 
the  monthly  afTefTments  being  now  eftablifhed  by  cuftom,  being 
raifed  by  commifiioners  named  by  parliament,  and  producing  a 
more  certain  revenue ;  from  that  time  forwards  we  hear  no  more 
of  fubfidies  ;  but  occafional  afleffments  were  granted  as  the  na- 
tional emergencies  required.  Thefe  periodical  afTefTments,  the 
fubfidies  which  preceded  them,  and  the  more  antient  fcutage, 
hydage,  and  talliage,  were  to  all  intents  and  purpofes  a  land  tax; 
and  the  affefTments  were  fometimes  expreffly  called  fo  p.  Yet  a 
popular  opinion  has  prevailed,  that  the  land  tax  was  firfl  intro- 
duced in  the  reign  of  king  William  III;  becaufe  in  the  year  1692 
a  new  affeflment  or  valuation  of  eflates  was  made  throughout  the 
kingdom ;  which,  though  by  no  means  a  perfect  one,  had  this 
effect,  that  a  fupply  of  500000  /.  was  equal  to  i  /.  in  the  pound 
of  the  value  of  the  eflates  given  in.  And,  according  to  this  en- 
hanced valuation,  from  the  year  1693  to  the  prefent,  a  period 
of  above  feventy  years,  the  land  tax  has  continued  an  annual 
charge  upon  the  fubject;  above  half  the  time  at  4^.  in  the  pound, 
fometimes  at  ys,  fometimes  at  zs,  twice q  at  i  s,  but  without  any 
total  intermifTion.  The  medium  has  been  3.;.  3^.  in  the  pound, 
being  equivalent  to  twenty  three  antient  fubfidies,  and  amounting 
annually  to  more  than  a  million  and  an  half  of  money.  The 

*  29  Nov.  4  Mar.  164?.  p  Com.  Journ.  26Jun.  9  Dec.  1678. 

0  Oneofthefe  bills  of  affeflment,  in  1656,         1  in  the  years  1732  and  1733. 
b  preferved  in  Scobell's  collection,  400. 

method 


Ch.  8.  of    PERSONS.  313 

method  of  railing  it  is  by  charging  a  particular  fum  upon  each 
county,  according  to  the  valuation  given  in,  A.D.  1692  :  and  this 
fum  is  aflefTed  and  raifed  upon  individuals  (their  perfonal  eftates, 
as  well  as  real,  being  liable  thereto)  by  commiffioners  appointed 
in  the  act,  being  the  principal  landholders  of  the  county,  and 
their  officers. 

II.  THE  other  annual  tax  is  the  malt  tax;  which  is  a  fum  of 
750000 /,  railed  every  year  by  parliament,  ever  fince  1697,  by 
a  duty  of  6  d.  in  the  bufliel  on  malt,  and  a  proportionable  fum 
on  certain  liquors,  fuch  as  cyder  and  perry,  which  might  other- 
wife  prevent  the  confumption  of  malt.  This  is  under  the  ma- 
nagement of  the  commiffioners  of  the  excife ;  and  is  indeed  itfelf 
no  other  than  an  annual  excife,  the  nature  of  which  fpecies  of 
taxation  I  mail  prefently  explain  :  only  premifing  at  prefent,  that 
in  the  year  1760  an  additional  perpetual  excife  of  3  d.  per  bufhel 
was  laid  upon  malt;  and  in  1763  a  proportionable  excife  was 
laid  upon  cyder  and  perry,  but  new-modelled  in  1766. 

THE  perpetual  taxes  are, 

I.  T  H  E  cufloms ;  or  the  duties,  toll,  tribute,  or  tariff,  pay- 
able upon  merchandize  exported  and  imported.  The  confidera- 
tions  upon  which  this  revenue  (or  the  more  antient  part  of  it, 
which  arofe  only  from  exports)  was  inverted  in  the  king,  were 
faid  to  be  twor;  i.  Becaufe  he  gave  the  fubjed  leave  to  depart 
the  kingdom,  and  to  carry  his  goods  along  with  him.  2.  Becaufe 
the  king  was  bound  of  common  right  to  maintain  and  keep  up 
the  ports  and  havens,  and  to  protect  the  merchant  from  pirates. 
Some  have  imagined  they  are  called  with  us  cuftoms,  becaufe  they 
were  the  inheritance  of  the  king  by  immemorial  ufage  and  the 
common  law,  and  not  granted  him  by  any  ftatute s :  but  fir  Ed- 
ward Coke  hath  clearly  fhewn ',  that  the  king's  firfl  claim  to 
them  was  by  grant  of  parliament  3  Edw.  I.  though  the  record 

'  Dyer.  165.  «  211^.58,59. 

Dyer.  43.  //.  24. 

thereof 


314  eff)e    RIGHTS  BOOK!. 

thereof  is  not  now  extant.  And  indeed  this  is  in  exprefs  words 
confefied  by  flatute  25  Edw.  I.  c.j.  wherein  the  king  promifes 
to  take  no  cuftoms  from  merchants,  without  the  common  aflent 
of  the  realm,  "  faving  to  us  and  our  heirs,  the  cuftoms  on  wools, 
"  ikins,  and  leather,  formerly  granted  to  us  by  the  commonalty 
"  aforefaid."  Thefe  were  formerly  called  the  hereditary  cuftoms 
of  the  crown  -,  and  were  due  on  the  exportation  only  of  the  faid 
three  commodities,  and  of  none  other  :  which  were  ftiled  the 
Jiaple  commodities  of  the  kingdom,  becaufe  they  were  obliged  to 
be  brought  to  thofe  ports  where  the  king's  ftaple  was  eftablifhed, 
in  order  to  be  there  firft  rated,  and  then  exported  u.  They  were 
denominated  in  the  barbarous  Latin  of  our  antient  records,  cuf- 
tuma" ;  not  conjuetttdines,  which  is  the  language  of  our  law  when- 
ever it  means  merely  ufages.  The  duties  on  wool,  fheep-fkins 
or  woolfells,  and  leather,  exported,  were  called  cuftuma  antiqua 
Ji-ve  magna ;  and  were  payable  by  every  merchant,  as  well  native 
as  ftranger ;  with  this  difference,  that  merchant  ftrangers  paid  an 
additional  toll,  viz.  half  as  much  again  as  was  paid  by  natives. 
The  cujluma  parva  et  nova  were  an  impoft  of  3  d.  in  the  pound, 
due  from  merchant-ftrangers  only,  for  all  commodities  as  well 
imported  as  exported ;  which  was  ufually  called  the  alien's  duty, 
and  was  firft  granted  in  31  Edw.  Iw.  But  thefe  antient  hereditary 
cuftoms,  efpecially  thofe  on  wool  and  woolfells,  came  to  be  of 
little  account  when  the  nation  became  fenfible  of  the  advantages 
of  a  home  manufacture,  and  prohibited  the  exportation  of  wool 
by  'ftatute  1 1  Edw.  III.  c.  i . 


T 


'HERE  is  alfo  another  very  antient  hereditary  duty  belonging 
to  the  crown,  called  the  prij'age  or  butkrage  of  wines  j  which  is 
confiderably  older  than  the  cuftoms,  being  taken  notice  of  in  the 
great  roll  of  the  exchequer,  8  Ric.  I.  ftill  extant".  Prifage  was 
a  right  of  taking  two  tons  of  \vine  from  every  fhip  importing  into 

•  Dav.  9.  iignifies  price,  charge,  or,  as  we  have  adopt- 

v  This  appellation  feems  to  be  derived  ed  it  in  Englifh,  cofl. 
from  the  French  vvurd  coujlum,   or  coiitum,         w  4  Inft.  29. 
•which  fignifies  toll  or  tribute,  and  owes  it's         *  Madox.  hift.  exch.  526.532. 
own  etymology  to  the  word  (ouji,    which 


Ch.  8.  ^PERSONS.  315 

England  twenty  tons  or  more;  which  by  Edward  I  was  exchanged 
into  a  duty  of  2  s.  for  every  ton  imported  by  merchant-flrangers, 
and  called  butlerage,  becaufe  paid  to  the  king's  butler y. 

OTHER  cuftoms  payable  upon  exports  and  imports  were  dif- 
tinguiflied  into  fubfidies,  tonnage,  poundage,  and  other  imports, 
Subfidies  were  fuch  as  were  impofed  by  parliament  upon  any  of  the 
ftaple  commodities  before-mentioned,  over  and  above  the  cujluma 
antiqua  et  magna :  tonnage  was  a  duty  upon  all  wines  imported, 
over  and  above  the  prifage  and  butlerage  aforefaid  :  poundage 
was  a  duty  impofed  ad  valorem,  at  the  rate  of  12  d.  in  the  pound, 
on  all  other  merchandize  whatfoever  :  and  the  other  imports  were 
fuch  as  were  occasionally  laid  on  by  parliament,  as  circumftances 
and  times  required z.  Thefe  diftinclions  are  now  in  a  manner 
forgotten,  except  by  the  officers  immediately  concerned  in  this 
department ;  their  produce  being  in  effecT:  all  blended  together, 
under  the  one  denomination  of  the  cuftoms. 

B  Y  thefe  we  underrtand,  at  prefent,  a  duty  or  fubfidy  paid  by 
the  merchant,  at  the  quay,  upon  all  imported  as  well  as  exported 
commodities,  by  authority  of  parliament  -,  unlefs  where,  for  par- 
ticular national  reafons,  certain  rewards,  bounties,  or  drawbacks, 
are  allowed  for  particular  exports  or  imports.  Thofe  of  tonnage 
and  poundage,  in  particular,  were  at  firft  granted,  as  the  old  fta- 
tutes  (and  particularly  lEliz.  c.  19.)  exprefs  it,  for  the  defence 
of  the  realm,  and  the  keeping  and  fafeguard  of  the  feas,  and  for 
the  intercourfe  of  merchandize  fafely  to  come  into  and  pafs  out 
of  the  fame.  They  were  at  firft  ufually  granted  only  for  a  rtated 
term  of  years,  as,  for  two  years  in  5  Ric.  II a ;  but  in  Henry  the 
fifth's  time,  they  were  granted  him  for  life  by  a  ftatute  in  the 
>  third  year  of  his  reign  ;  and  again  to  Edward  IV  for  the  term  of 
his  life  alfo  :  fince  which  time  they  were  regularly  granted  to  all 
his  fucceffors,  for  life,  fometimes  at  their  firft,  fometimes  at  other 
fubfequent  parliaments,  till  the  reign  of  Charles  the  firft ;  when, 

V  Dav.  8.     2Bulftr.  254.  *Ibid.\z. 

z  Dav.  11,  12. 

as 


3 1 6  77je    RIGHTS  BOOK!. 

as  the  noble  hiilorian  exprefles  it b,  his  minifters  were  not  fufii- 
ciently  felicitous  for  a  renewal  of  this  legal  grant.  And  yet  they 
were  imprudently  and  unconftitutionally  levied  and  taken,  with- 
out confent  of  parliament,  for  fifteen  years  together;  which  was 
one  of  the  caufes  of  thofe  unhappy  difcontents,  juftifiable  at  firfl 
in  too  many  instances,  but  which  degenerated  at  laft  into  caufe- 
lefs  rebellion  and  murder.  For,  as  in  every  other,  fo  in  this  par- 
ticular cafe,  the  king  (previous  to  the  commencement  of  hofti- 
lities)  gave  the  nation  ample  fatisfaclion  for  the  errors  of  his  for- 
mer conduit,  by  pafiing  an  aft  %  whereby  he  renounced  all  power 
in  the  crown  of  levying  the  duty  of  tonnage  and  poundage,  with- 
out the  exprefs  confent  of  parliament ;  and  alfo  all  power  of  im- 
pofition  upon  any  merchandizes  whatever.  Upon  the  reftoration 
this  duty  was  granted  to  king  Charles  the  fecond  for  life,  and  fo 
it  was  to  his  two  immediate  fucceflbrs ;  but  now  by  three  feve- 
ral  ftatutes,  9  Ann.  c.  6.  i  Geo.  I.  c.  12.  and.^Gep.  I.  c.  7.  it 
is  made  perpetual  and  mortgaged  for  the  debt  of  the  public.  The 
cuftoms,  thus  impofed  by  parliament,  are  chiefly  contained  in 
two  books  of  rates,  fet  forth  by  parliamentary  authority  d ;  one 
figned  by  fir  Harbottle  Grimfton,  fpeaker  of  the  houfe  of  com- 
mons in  Charles  the  fecond's  time ;  and  the  other  an  additional 
one  figned  by  fir  Spenfer  Compton,  fpeaker  in  the  reign  of  George 
the  firft ;  to  which  alfo  fubfequent  additions  have  been  made. 
Aliens  pay  a  larger  proportion  than  natural  fubjedls,  which  is 
what  is  now  generally  understood  by  the  aliens'  duty ;  to  be  ex- 
empted from  which  is  one  principal  caufe  of  the  frequent  appli- 
cations to  parliament  for  adts  of  naturalization. 

THESE  cuftoms  are  then,  we  fee,  a  tax  immediately  paid  by 
the  merchant,  although  ultimately  by  the  confumer.  And  yet 
thefe  are  the  duties  felt  lead  by  the  people ;  and,  if  prudently 
managed,  the  people  hardly  confider  that  they  pay  them  at  all. 
For  the  merchant  is  eaiy,  being  fenfible  he  does  not  pay  them 
for  himfelf ;  and  the  confumer,  who  really  pays  them,  confounds 

b  Hid.  Rebell.  b.  3.  *  Stat.  12  Car.  II.  04.     1 1  Geo.  I.  c.  ~. 

'  16  Car.  I.  c.  S. 

them 


Ch.  8.  of    PERSONS.  317 

them  with  the  price  of  the  commodity  :  in  the  fame  manner  as 
Tacitus  obferves,  that  the  emperor  Nero  gained  the  reputation  of 
abolifhing  the  tax  on  the  fale  of  flaves,  though  he  only  tranf- 
ferred  it  from  the  buyer  to  the  feller  ;  fo  that  it  was,  as  he  ex- 
prelles  it,  "  remiffum  magis- Jpecie,  quam  vi :  quia,  cum  vcnditor 
" pendere  juberetur,  in  partem  pretii  emptoribus-  aecrefcebat V  But 
this  inconvenience  attends  it  on  the  other  hand,  that  thefe  im- 
ports, if  too  heavy,  are  a  check  and  cramp  upon  trade ;  and  ef- 
pecially  when  the  value  of  the  commodity  bears  little  or  no  pro- 
portion to  the  quantity  of  the  duty  impofed-.  This  in  confequence 
gives  rife  alfo  to  fmuggling,  which  then  becomes  a  very  lucrative 
employment :  and  it's  natural  and  moft  reafonable  punimment, 
viz.  confifcation  of  the  commodity,  is  in  fuch  cafes  quite  inef- 
fectual ;  the  intrinfic  value  of  the  goods,  which  is  all  that  the 
fmuggler  has  paid,  and  therefore  all  that  he  can  lofe,  being  very 
inconliderable  when  compared  with  his  profpect  of  advantage  in 
evading  the  duty.  Recourfe  rnuft  therefore  be  had  to  extraordi- 
nary punishments  to  prevent  it;  perhaps  even  to  capital  ones  : 
which  deftroys  all  proportion  of  punifhment f,  and  puts  murderers 
upon  an  equal  footing  with  fuch  as  are  really  guilty  of  no  natural, 
but  merely  a  poiitive,  offence. 

THERE  is  alfo"  another  ill  confequence  attending  high  im- 
pofts  on  merchandize,  not  frequently  confidered,  but  indifputably 
certain  ;  that  the  earlier  any  tax  is  laid  on  a  commodity,  the 
heavier'it  falls  upon  the  confumer  in  the  end  :  for  every  trader, 
through  whofe  hands  it  paffes,  muft  have  a  profit,  not  only  upon 
the  raw  material  and  his  own  labour  and  time  in  preparing  it, 
but  alfo  upon  the  very  tax  itfelf,  which  he  advances  to  the  go- 
vernment; otherwife  he  lofes  the  ufe  and  intereft  of  the  money 
which  he  fo  advances.  To  inftance  in  the  article  of  foreign  pa- 
per. The  merchant  pays  a  duty  upon  importation,  which  he  does 
not  receive  again  till  he  fells  the  commodity,  perhaps  at  the  end 
of  three  months.  He  is  therefore  equally  entitled  to  a  profit  upon 

c  Hijl.  I.  13,  f  Montefcju.  Sp.  L.  b.  13.  c.  8. 

that 


3 1 8  'The    RIGHTS  BOOK!. 

that  duty  which  he  pays  at  the  cuftom-houfe,  as  to  a  profit 
upon  the  original  price  which  he  pays  to  the  manufacturer  abroad; 
and  confiders  it  accordingly  in  the  price  he  demands  of  the  fta- 
tioner.  When  the  ftationer  fells  it  again,  he  requires  a  profit  of 
the  printer  or  bookfeller  upon  the  whole  fum  advanced  by  him  to 
the  merchant :  and  the  bookfeller  does  not  forget  to  charge  the 
full  proportion  to  the  ftudent  or  ultimate  confumer ;  who  there- 
fore does  not  only  pay  the  original  duty,  but  the  profits  of  thefe 
three  intermediate  traders,  who  have  fucceffively  advanced  it  for 
him.  This  might  be  carried  much  farther  in  any  mechanical,  or 
more  complicated,  branch  of  trade. 

II.  DIRECTLY  oppofite  in  it's  nature  to  this  is  the  excife 
duty  ;  which  is  an  inland  impofition,  paid  fometimes  upon  the 
confumption  of  the  commodity,  or  frequently  upon  the  retail 
fale,  which  is  the  laft  ftage  before  the  confumption.  This  is 
doubtlefs,  impartially  fpeaking,  the  mofl  oeconomical  way  of 
taxing  the  fubjecT: :  the  charges  of  levying,  collecting,  and  ma- 
naging the  excife  duties  being  conliderably  leis  in  proportion,  than 
in  other  branches  of  the  revenue.  It  alfo  renders  the  commo- 
dity cheaper  to  the  confumer,  than  charging  it  with  cuftoms  to 
the  fame  amount  would  do;  for  the  reafon  juft  now  given,  be- 
caufe  generally  paid  in  a  much  later  ftage  of  it.  But,  at  the  fame 
time,  the  rigour  and  arbitrary  proceedings  of  excife-laws  feem 
hardly  compatible  with  the  temper  of  a  free  nation.  For  the 
frauds  that  might  be  committed  in  this  branch  of  the  revenue, 
unlefs  a  ftridt  watch  is  kept,  make  it  neceffary,  wherever  it  is 
eftablifhed,  to  give  the  officers  a  power  of  entring  and  fearching 
the  houfes  of  fuch  as  deal  in  excifable  commodities,  at  any  hour 
of  the  day,  and,  in  many  cafes,  of  the  night  iikewife.  •  And  the 
proceedings  in  cafe  of  tranfgrefiions  are  fo  fummary  and  fudden, 
that  a  man  may  be  conv idled  in  two  days  time  in  the  penalty  of 
many  thoufand  pounds  by  two  commirTioners  or  juflices  of  the 
peace ;  to  the  total  exclufion  of  the  trial  by  jury,  and  dilregard 
of  the  common  law.  For  which  reafon,  though  lord  Clarendon 

tells 


Ch.  8.  ^PERSONS.  3r9 

tells  us  s,  that  to  his  knowlege  the  earl  of  Bedford  (who  was 
made  lord  treafurer  by  king  Charles  the  firft,  to  oblige  his  par- 
liament) intended  to  have  fet  up  the  excife  in  England,  yet  it 
never  made  a  part  of  that  unfortunate  prince's  revenue ;  being 
firft  introduced,  on  the  model  of  the  Dutch  prototype,  by  the 
parliament  itfelf  after  it's  rupture  with  the  crown.  Yet  fuch  was 
the  opinion  of  it's  general  unpopularity,  that  when  in  1642  "  af- 
"  perfions  were  caft  by  malignant  perfons  upon  the  houfe  of  com- 
"  mons,  that  they  intended  to  introduce  excifes,  the  houfe  for  it's 
"vindication  therein  did  declare,  that  thefe  rumours  were  falfe 
"  and  fcandalous ;  and  that  their  authors  mould  be  apprehended 
"  and  brought  to  condign  puniftimentV'  It's  original '  eftabliih- 
ment  was  in  1643,  and  it's  progrefs  was  gradual ;  being  at  firft 
laid  upon  thofe  perfons  and  commodities,  where  it  was  fuppofed 
the  hardfhip  would  be  leaft  perceivable,  viz.  the  makers  and 
venders  of  beer,  ale,  cyder,  and  perry k;  and  the  royalifts  at 
Oxford  foon  followed  the  example  of  their  brethren  at  Weftmin- 
fter  by  impofing  a  fimilar  duty;  both  fides  protefting  that  it 
mould  be  continued  no  longer  than  to  the  end  of  the  war,  and 
then  be  utterly  abolimed1.  But  the  parliament  at  Weftminfter 
foon  after  impofed  it  on  rlefh,  wine,  tobacco,  fugar,  and  fuch  a 
multitude  cf  other  commodities  that  it  might  fairly  be  denominated 
general  -,  in  purfuance  of  the  plan  laid  down  by  Mr  Pymme  (who 
feems  to  have  been  the  father  of  the  excife)  in  his  letter  to  fir  John 
Hotham  m,  fignifying,  "  that  they  had  proceeded  in  the  excife  to 

"  many  particulars,  and  intended  to  go  on  farther ;    but  that  it 

-- 

s  Kift.  b.  3.  and    publiflied    in    1654   "A    protection 

h  Cora.  Journ.  8  Oft.  1642.  "  againft  the  illegal,    deteftable,    and  oft- 

1  The  tranflator  and  continuator  of  Pe-  "  condemned    tax  and  extortion  of  excife 

tavius's  chronological  hiftory  (Lond. 1 659.)  "in  general."    It  is  probably  therefore  a 

informs    us,    that  it  was    firft    moved    for,  miflake  of  the  printer  for  Mr  Pymme,   who 

28  Mar.  1643,    by  Mr  Prynne.    And  it  ap-  was  intended  for  chancellor  of  the  exche- 

pears  from  the  journals  of  the  commons  that  quer   under  the   earl  of   Bedford.     (Lord 

on  that  day  the  houfe  refolved  itfelf  into  a  Clar.   b.  7.) 

committee  to  confider  of  raiting  money,  in  k  Com.  Journ.  17  May  1643. 

confequence  of  which  the  excife  was  after-  '  Lord  Clar.   b.  7. 

wards  voted.     But  Mr  Prynne  was  not  a  m  jbMty rf^.  Dugdaleof  the  troubles,, 

mei.iuer  of  parliament  till   7  Nov.   1648;  120. 

"  would 


320  *Frje    RIGHTS  BOOK!, 

"  would  be  necellary  to  ufe  the  people  to  it  by  little  and  little." 
And  afterwards,  when  the  nation  had  been  accuftomed  to  it  for 
a  feries  of  years,  the  fucceeding  champions  of  liberty  boldly  and 
openly  declared  "  the  impoil  of  excife  to  be  the  moft  eafy  and 
"  indifferent  levy  that  could  be  laid  upon  the  people  "  :"  and  ac- 
cordingly continued  it  during  the  whole  ufurpation.  Upon  king 
Charles's  return,  it  having  then  been  long  eflablilhed  and  it's 
produce  well  known,  fome  part  of  it  was  given  to  the  crown,  in 
1 2  Car.  II,  by  way  of  purchafe  (as  was  before  obferved)  for 
the  feodal  tenures  and  other  oppreflive  parts  of  the  hereditary  re- 
venue. But,  from  it's  firft  original  to  the  prefent  time,  it's  very 
name  has  been  odious  to  the  people  of  England.  It  has  never- 
thelefs  been  impofed  on  abundance  of  other  commodities  in  the 
reigns  of  king  William  III,  and  every  fucceeding  prince,  to  fup- 
port  the  enormous  expenfes  occafioned  by  our  wars  on  the  conti- 
nent. Thus  brandies  and  other  fpirits  are  now  excifed  at  the  dif- 
tillery  j  printed  filks  and  linens,  at  the  printers ;  ftarch  and  hair 
powder,  at  the  maker's  j  gold  and  filver  wire,  at  the  wiredrawer's ; 
all  plate  whatfoever,  firft  in  the  hands  of  the  vendor,  who  pays 
yearly  for  a  licence  to  fell  it,  and  afterwards  in  the  hands  of  the 
occupier,  who  alfo  pays  an  annual  duty  for  having  it  in  his  cuf- 
tody  j  and  coaches  and  other  wheel  carriages,  for  which  the  oc- 
cupier is  excifed  ;  though  not  with  the  fame  circumftances  of  ar- 
bitrary ftridlnefs  with  regard  to  plate  and  coaches,  as  in  the  other 
inftances.  To  thefe  we  may  add  coffee  and  tea,  'chocolate,  and 
cocoa  pafte,  for  which  the  duty  is  paid  by  the  retailer ;  all  arti- 
ficial wines,  commonly  called  fweets ;  paper  and  pafteboaid,  firft: 
when  made,  and  again  if  ftained  or  printed ;  malt  as  before- 
mentioned  ;  vinegars  ;  and  the  manufacture  of  glafs ;  for  all 
which  the  duty  is  paid  by  the  manufacturer  ;  hops,  for  which  the 
perfon  that  gathers  them  is  anfwerable;  candles  and  foap,  which 
are  paid  for  at  the  maker's  j  malt  liquors  brewed  for  fale,  which 
are  excifed  at  the  brewery ;  cyder  and  perry,  at  the  vendor's  j 
and  leather  and  fkins,  at  the  tanner's.  A  lift,  which  no  friend  to 
his  country  would  wim  to  fee  farther  encreafed. 

71  Ord.  14  Aug.  1649.  0.50.    Scobell.  72.    8131.1656.  c.  19.    Scobell.  453. 

III.     I    PRO- 


Ch.  8.  of   PERSONS.  321 

III.  I  PROCEED  therefore  to  a  third  duty,  namely  that  upon 
fait ;    which  is  another  diftincl:  branch  of  his  majefly's  extraor- 
dinary revenue,  and  confifts  in  an  excife  of  3  s .  4  d.  per  bufliel 
impofed  upon  all  fait,  by  feveral  ftatutes  of  king  William  and 
other  fubfequent  reigns.    This  is  not  generally  called  an  excife, 
becaufe  under  the  management  of  different  commiffioners  :    but 
the  commiffioners  of  the  fait  duties  have  by  ftatute  i  Ann.  c.  21. 
the  fame  powers,  and  muft  obferve  the  fame  regulations,  as  thofe 
of  other  excifes.    This  tax  had  ufually  been  only  temporary;  but 
by  ftatute  26  Geo.  II.  c.  3.   was  made  perpetual. 

IV.  -ANOTHER  very  confiderable  branch  of  the  revenue  is 
levied  with  greater  chearfulnefs,  as,  inftead  of  being  a  burden, 
it  is  a  manifefl  advantage  to  the  public.    I  mean  the  poft-ofHce, 
or  duty  for  the  carriage  of  letters.    As  we  have  traced  the  origi- 
nal of  the  excife  to  the  parliament  of  1643,  fo  it  is  but  juftice 
to  obferve  that  this  ufeful  invention  owes  it's  birth  to  the  fame 
aflembly.     It  is  true,  there  exifted  poft-mafters  in  much  earlier 
times :    but  I  apprehend  their  bufmefs  was  confined  to  the  fur- 
nifhing  of  poft-horfes  to  perfons  who  were  defirous  to  travel  ex- 
peditioufly,  and  to  the  difpatching  extraordinary  pacquets  upon 
ipecial  occafions.    The  outline  of  the  prefent  plan  feems  to  have 
been  originally  conceived  by  Mr  Edmond  Prideaux,    who  was 
appointed  attorney  general  to  the  commonwealth  after  the  mur- 
der of  king  Charles.    He  was  chairman  of  a  committee  in  1642 
for  confidering  what  rates  mould  be  fet  upon  inland  letters  °;  and 
afterwards  appointed  poft-mafter  by  an  ordinance  of  both  the 
houfes p,  in  the  execution  of  which  office  he  firft  eftablifhed  a 
weekly  conveyance  of  letters  into  all  parts  of  the  nation q :  thereby 
faving  to  the  public  the  charge  of  maintaining  poft-mafters,  to  the 
amount  of  7000 /.  per  annum.    And,  his  own  emoluments  being 
probably  confiderable,   the  common  council  of  London  endea- 
voured to  eredl  another  poft-office  in  oppofition  to  his,  till  checked 

•  Com.  Journ.  28  Mar.  1642.  1  Ibid.  21  Mar.  1649. 

-D  Hud.  7  Sept.  1644. 

R  r  by 


322  The    RIGHTS  BOOK  I. 

by  a  refolution  of  the  commons r,  declaring,  that  the  office  of 
poft-marter  is  and  ought  to  be  in  the  fole  power  and  difpofal  of 
the  parliament.  This  office  was  afterwards  farmed  by  one  Man- 
ley  in  1654'.  But,  in  1657,  a  regular  port-office  was  erected  by 
the  authority  of  the  protestor  and  his  parliament,  upon  nearly 
the  fame  model  as  has  been  ever  fince  adopted,  with  the  fame 
rates  of  portage  as  were  continued  till  the  reign  of  queen  Anne'. 
After  the  reftoration  a  fimilar  office,  with  fome  improvements, 
was  ertablifhed  by  ftatute  12 Car.  II.  c.  35.  but  the  rates  of  let- 
ters were  altered,  and  fome  farther  regulations  added,  by  the 
rtatutes  9  Ann.  c.  10.  6  Geo.  I.  c.  21.  26  Geo.  II.  c.  12.  and 
5  Geo.  III.  c.  25.  and  penalties  were  enacted,  in  order  to  con- 
fine the  carriage  of  letters  to  the  public  office  only,  except  in 
fome  few  cafes  :  a  provifion,  which  is  abfolutely  neceffary ;  for 
nothing  but  an  exclulive  right  can  fupport  an  office  of  this  fort : 
many  rival  independent  offices  would  only  ferve  to  ruin  one 
another.  The  privilege  of  letters  coming  free  of  portage,  to 
and  from  members  of  parliament,  was  claimed  by  the  houfe  of 
commons  in  1660,  when  the  firft  legal  fettlement  of  the  prefent 
port-office  was  made";  but  afterwards  dropped"  upon  a  private 
affurance  from  the  crown,  that  this  privilege  fhould  be  allowed 
the  members  w.  And  accordingly  a  warrant  was  constantly  iffued 
to  the  poft-marter- general",  directing  the  allowance  thereof,  to 
the  extent  of  two  ounces  in  weight :  till  at  length  it  was  ex- 
preffly  confirmed  by  ftatute  4  Geo.  III.  c.  24;  which  adds  many 
new  regulations,  rendered  neceffary  by  the  great  abufes  crept  into 
the  practice  of  franking  j  whereby  the  annual  amount  of  franked 
letters  had  gradually  increafed,  from  236007.  in  the  year  1715,  to 
1707007.  in  the  year  1763  y.  There  cannot  be  devifed  a  more 
eligible  method,  than  this,  of  railing  money  upon  the  fubject : 
for  therein  both  the  government  and  the  people  find  a  mutual 
benefit.  The  government  acquires  a  large  revenue ;  and  the 

*  Com.  Journ.  21  Mar.  1649.  v  Hid.  22  Dec.  1660. 
"  Scobell.  358.  w  ttid.    16  Apr.  1755. 
1  Com.  Journ.  pjun.  1657.    Scobell.jii.  x  Ibid,  26Feb    1734. 

•  Com.  Journ.  17  Dec.  1660.  y  Ibid.  28  Mar.  1764. 

people 


Ch.  8.  <?/"   PERSONS.  323 

people  do  their  bufinefs  with  greater  eafe,  expedition,  and  cheap- 
nefs,  than  they  would  be  able  to  do  if  no  fuch  tax  (and  of  courfe 
no  fuch  office)  exifted. 

V.  A  F  i  F  T  H  branch  of  the  perpetual  revenue  confifts  in  the 
{lamp  duties,  which  are  a  tax  impofed  upon  all  parchment  and 
paper  whereon  any  legal  proceedings,  or  private  inftruments  of 
almoft  any  nature  whatfoever,  are  written  ;  and  alfo  upon  licences 
for  retailing  wines,  of  all  denominations ;  upon  all  almanacks, 
news-papers,  advertifements,  cards,  dice,  and  pamphlets  contain- 
ing lefs  than  fix  meets  of  paper.  Thefe  imports  are  very  various, 
according  to  the  nature  of  the  thing  ftamped,  rifing  gradually 
from  a  penny  to  ten  pounds.  This  is  alfo  a  tax,  which  though 
in  fome  inftances  it  may  be  heavily  felt,  by  greatly  increafing  the 
expenfe  of  all  mercantile  as  well  as  legal  proceedings,  yet  (if 
moderately  impofed)  is  of  fervice  to  the  public  in  general,  by 
authenticating  inftruments,  and  rendering  it  much  more  difficult 
than  formerly  to  forge  deeds  of  any  "ftanding  j  fince,  as  the  offi- 
cers of  this  branch  of  the  revenue  vary  their  {lamps  frequently, 
by  marks  perceptible  to  none  but  themfelves,  a  man  that  would 
forge  a  deed  of  king  William's  time,  muft  know  and  be  able  to 
counterfeit  the  ftamp  of  that  date  alfo.  In  France  and  fome  other 
countries  the  duty  is  laid  on  the  contract  itfelf,  not  on  the  inflru- 
ment  in  which  it  is  contained  :  but  this  draws  the  fubject  into  a 
thoufand  nice  difquifitions  and  difputes  concerning  the  nature  of 
his  contract,  and  whether  taxable  or  not ;  in  which  the  farmers 
of  the  revenue  are  lure  to  have  the  advantage.  Our  method  an- 
fwers  the  purpofes  of  the  ftate  as  well,  and  confults  the  eafe  of 
the  fiibjecl  much  better.  The  firft  inftitution  of  the  flamp  duties 
was  by  ftatute  5  &  6  W.  &  M.  c.  2 1 .  and  they  have  fince  in  many 
inftances  been  encreafed  to  five  times  their  original  amount. 

-  VI.  A  SIXTH  branch  is  the  duty  upon  houfes  and  windows. 
As  early  as  the  conquefl  mention  is  made  in  domefday  book  of 
fumage  or  fuage,  vulgarly  called  fmoke  farthings ;  which  were 
paid  by  cuftom  to  the  king  for  every  chimney  in  the  houfe.  And 

R  r  2  we 


324  7$*    RIGHTS  BOOK  I. 

we  read  that  Edward  the  black  prince  (foon  after  his  fuccefles  in 
France)  in  imitation  of  the  Englifh  civftom,  impofed  a  tax  of  a 
florin  upon  every  hearth  in  his  French  dominions z.  But  the  firft 
parliamentary  eflablifhment  of  it  in  England  was  by  flatute 
13  6c  1 4  Car.  II.  c.io.  whereby  an  hereditary  revenue  of  2s.  for 
every  hearth,  in  all  houfes  paying  to  church  and  poor,  was  granted 
to  the  king  for  ever.  And,  by  fubfequent  ftatutes,  for  the  more 
regular  afleffment  of  this  tax,  the  conflable  and  two  other  fub- 
ftantial  inhabitants  of  the  parilh,  to  be  appointed  yearly,  (or  the 
furveyor,  appointed  by  the  crown,  together  with  fuch  conflable 
or  other  public  officer)  were,  once  in  every  year,  empowered  to 
view  the  infide  of  every  houfe  in  the  parifh.  But,  upon  the  re- 
volution, by  ftatute  i  W.  5c  M.  ft.  i.  c.  10.  hearth-money  was 
declared  to  be  "  not  only  a  great  oppreffion  to  the  poorer  fort, 
««  but  a  badge  of  flavery  upon  the  whole  people,  expofing  every 
«'  man's  houfe  to  be  entered  into,  and  fearched  at  pleafure,  by 
f<  perfons  unknown  to  him ;  and  therefore,  to  erect  a  lafting  mo- 
"  nument  of  their  majefties'  goodnefs  in  every  houfe  in  the  king- 
"  dom,  the  duty  of  hearth-money  was  taken  away  and  abolifhed." 
This  monument  of  goodnefs  remains  among  us  to  this  day  :  but 
the  profpect  of  it  was  fomewhat  darkened  when,  in  fix  years  af- 
terwards, by  ftatute  yW.  III.  c.i8.  a  tax  was  laid  upon  all  houfes 
(except  cottages)  of  2s.  now  advanced  to  3^.  per  houfe,  and  a 
tax  alfo  upon  all  windows,  if  they  exceeded  nine,  in  fuch  houfe. 
Which  rates  have  been  from  time  to  time  a  varied,  being  now 
extended  to  all  windows  exceeding  fix;  and  power  is  given  to 
furveyors,  appointed  by  the  crown,  to  infpecl:  the  outfide  of 
houfes,  and  alfo  to  pafs  through  any  houfe  two  days  in  the  year, 
into  any  court  or  yard  to  infpedl  the  windows  there. 

VII.  THE  feventh  branch  of  the  extraordinary  perpetual  re- 
venue is  the  duty  arifing  from  licences  to  hackney  coaches  and 
chairs  in  London,  and  the  parts  adjacent.  In  1654  two  hundred 
hackney  coaches  were  allowed  within  London,  Weflminfter,  and 

z  Mod.   Un.    Hift.  xxiii.  463.      Spelm.         a  Stat.  zoGeo.  II.  0.3.   31  Geo.  II.  c.zz. 
GlofT.  tit.  fuagt.  zGeD.III.  c.  8.    6  Geo.  III.  €.38. 

fix 


Ch.  8.  of    PERSONS,  325- 

fix  miles  round,  under  the  direction  of  the  court  of  aldermen  b. 
By  ftatute  1 3  Sc  1 4  Car.  II.  c.  2.  four  hundred  were  licenfed;  and 
the  money  arifing  thereby  was  applied  to  repairing  the  ftreets c. 
This  number  was  increafed  to  feven  hundred  by  ftatute  5  W.  &  M. 
c.  22.  and  the  duties  vefted  in  the  crown  :  and  by  the  ftatute 
9  Ann.  c.  23.  and  other  fubfequent  ftatutes d,  there  are  now  eight 
hundred  licenfed  coaches  and  four  hundred  chairs.  This  revenue 
is  governed  by  commirlioners  of  it's  own,  and  is,  in  truth,  a 
benefit  to  the  fubject ;  as  the  expenfe  of  it  is  felt  by  no  indivi- 
dual, and  it's  necefTary  regulations  have  eftablifhed  a  competent 
jurifdiction,  whereby  a  very  refractory  race  of  men  may  be  kept 
in  fome  tolerable  order. 

VIII.  THE  eighth  and  lafl  branch  of  the  king's  extraordinary 
perpetual  revenue  is  the  duty  upon  offices  and  penfions  •,  confift- 
ing  in  a  payment  of  i  s.  in  the  pound  (over  and  above  all  other 
duties)  out  of  all  falaries,  fees,  and  perquifites,  of  offices,  and 
penlions  payable  by  the  crown.  This  highly  popular  taxation  wa£ 
impofed  by  ftatute  3 1  Geo.  II.  c.  22.  and  is  under  the  direction- 
of  the  commirlioners  of  the  land  tax. 

THE  clear  neat  produce  of  thefe  feveral  branches  of  the  re- 
venue, after  all  charges  of  collecting  and  management  paid, 
amounts  annually  to  about  feven  millions  and  three  quarters  fter- 
ling ;  befides  two  millions  and  a  quarter  raifed  annually,  at  an 
average,  by  the  land  and  malt  tax.  How  thefe  immenfe  fums 
are  appropriated,  is  next  to  be  confidered.  And  this  is,  firft  and. 
principally,  to  the  payment  of  the  intereft  of  the  national  debt. 

I  N  order  to  take  a  clear  and  comprehenfive  view  of  the  nature- 
of  this  national  debt,  it  muft  firft  be  premifed,  that  after  the  re- 
volution, when  our  new  connections  with  Europe  introduced  a 
new  fyftem  of  foreign  politics,  the  expenfes  of  the  nation,  not 
only  in  fettling  the  new  eftabliihment,  but  in  maintaining  long, 

b  Scobell.  313.  d  loAnn.  €.19.  §.158.    12  Geo.  I.  c.  15. 

c  Com.  Journ.  i4Feb.  1661.  33660.  II.  0.25. 

wars, 


326  The    RIGHTS  BOOK!. 

wars,  as  principals,  on  the  continent,  for  the  fecurity  of  the 
Dutch  barrier,  reducing  the  French  monarchy,  fettling  the 
Spanifh  fucceffion,  fupporting  the  houfe  of  Auflria,  maintaining 
the  liberties  of  the  Germanic  body,  and  other  purpofes,  increa- 
fed  to  an  unufual  degree  :  infomuch  that  it  was  not  thought  ad- 
vifable  to  raife  all  the  expenfes  of  any  one  year  by  taxes  to  be  le- 
vied within  that  year,  left  the  unaccuflomed  weight  of  them 
mould  create  murmurs  among  the  people.  It  was  therefore  the 
policy  of  the  times,  to  anticipate  the  revenues  of  their  poflerity, 
by  borrowing  immenfe  fums  for  the  current  fervice  of  the  flate, 
and  to  lay  no  more  taxes  upon  the  fubjecl  than  would  fuffice  to 
pay  the  annual  interefl  of  the  fums  fo  borrowed  :  by  this  means 
converting  the  principal  debt  into  a  new  fpecies  of  property, 
transferable  from  one  man  to  another  at  any  time  and  in  any 
quantity.  A  fyflem  which  feems  to  have  had  it's  original  in  the 
flate  of  Florence,  A.  D.  1 344  :  which  government  then  owed 
about  60000  /.  fherling,  and,  being  unable  to  pay  it,  formed  the 
principal  into  an  aggregate  fum,  called  metaphorically  a  mount  or 
bank,  the  fhares  whereof  were  transferable  like  our  flocks, 
with  interefl  at  5  per  cent,  the  prices  varying  according  to  the 
exigencies  of  the  flate e.  This  laid  the  foundation  of  what  is 
called  the  national  debt :  for  a  few  long  annuities  created  in  the 
reign  of  Charles  II  will  hardly  deferve  that  name.  And  the  ex- 
ample then  fet  has  been  fo  clofely  followed  during  the  long  wars 
in  the  reign  of  queen  Anne,  and  lince,  that  the  capital  of  the 
national  debt,  (funded  and  unfunded)  amounted  in  January  1765 
to  upwards  of  145,000,0007.  to  pay  the  interefl  of  which,  and 
the  charges  for  management,  amounting  annually  to  about  four 
millions  and  three  quarters,  the  extraordinary  revenues  jufl  now 
enumerated  (excepting  only  the  land-tax  and  annual  malt-tax) 
are  in  the  firfl  place  mortgaged,  and  made  perpetual  by  parlia- 
ment. Perpetual,  I  fay ;  but  frill  redeemable  by  the  fame  autho- 
rity that  impofed  them  :  which,  if  it  at  any  time  can  pay  off  the 

c  Pro  tempore,  pro  fpc,  pro  commode,  rninuitur  eorum  pretium  atque  augefcit.    Aretin.     See 
Mod.  Un.  Hill,  xxj.vi,  116. 

capital, 


Ch.  8.  of  PERSONS.  327 

capital,  will  abolifli  thofe  taxes  which  are  raifed  to  difcharge  the 
intereft. 

BY  this  means  the  quantity  of  property  in  the  kingdom  is 
greatly  encreafed  in  idea,  compared  with  former  times  ;  yet,  if 
we  coolly  confider  it,  not  at  all  encreafed  in  reality.  We  may 
boaft  of  large  fortunes,  and  quantities  of  money  in  the  funds. 
But  where  does  this  money  exift?  It  exifts  only  in  name,  in  paper, 
in  public  faith,  in  parliamentary  fecurity  :  and  that  is  undoubt- 
edly fufficient  for  the  creditors  of  the  public  to  rely  on.  But  then 
what  is  the  pledge  which  the  public  faith  has  pawned  for  the 
fecurity  of  thefe  debts  ?  The  land,  the  trade,  and  the  perfonal 
induftry  of  the  fubje6t;  from  which  the  money  muft  arife  that 
fupplies  the  feveral  taxes.  In  thefe  therefore,  and  thefe  only,  the 
property  of  the  public  creditors  does  really  and  intrinfically  exift  : 
and  of  courfe  the  land,  the  trade,  and  the  perfonal  induftry  of 
individuals,  are  diminished  in  their  true  value  juft  fo  much  as  they 
are  pledged  to  anfwer.  If  A's  income  amounts  to  ioo/.  per  an- 
num ;  and  he  is  fo  far  indebted  to  B,  that  he  pays  him  50  /.  per 
annum  for  his  intereft ;  one  half  of  the  value  of  A's  property  is 
transferred  to  B  the  creditor.  The  creditor's  property  exifts  in 
the  demand  which  he  has  upon  the  debtor,  and  no  where  elfe ; 
and  the  debtor  is  only  a  truftee  to  his  creditor  for  one  half  of  the 
value  of  his  income.  In  fhort,  the  property  of  a  creditor  of  the 
public  coniifts  in  a  certain  portion  of  the  national  taxes  :  by 
how  much  therefore  he  is  the  richer,  by  fo  much  the  nation, 
which  pays  thefe  taxes,  is  the  poorer. 

TH  E  only  advantage,  that  can  refult  to  a  nation  from  public 
debts,  is  the  encreafe  of  circulation  by  multiplying  the  cafli  of 
the  kingdom,  and  creating  a  new  fpecies  of  money,  always  ready 
to  be  employed  in  any  beneficial  undertaking,  by  means  of  it's 
transferable  quality ;  and  yet  productive  of  fome  profit,  even 
when  it  lies  idle  and  unemployed.  A  certain  proportion  of  debt 
feems  the  re  fere  to  be  highly  uleful  to  a  trading  people;  but  what 
that  proportion  is,  it  is  not  for  me  to  determine.  Thus  much  is 

indifputably 


328  The.    RIGHTS  BOOK!. 

indifputably  certain,  that  the  prefent  magnitude  of  our  national 
incumbrances  very  far  exceeds  all  calculations  of  commercial  be- 
nefit, and  is  productive  of  the  greateft  inconveniences.  For,  firft, 
the  enormous  taxes,  that  are  raifed  upon  the  neceffaries  of  life  for 
the  payment  of  the  intereft  of  this  debt,  are  a  hurt  both  to  trade 
and  manufactures,  by  railing  the  price  as  well  of  the  artificer's 
fubfiilence,  as  of  the  raw  material,  and  of  courfe,  in  a  much 
greater  proportion,  the  price  of  the  commodity  itfelf.  Secondly, 
if  part  of  this  debt  be  owing  to  foreigners,  either  they  draw  out 
of  the  kingdom  annually  a  confiderable  quantity  of  fpecie  for  the 
intereft ;  or  elfe  it  is  made  an  argument  to  grant  them  unreafon- 
able  privileges  in  order  to  induce  them  to  refide  here.  Thirdly, 
if  the  whole  be  owing  to  fubjects  only,  it  is  then  charging  the 
active  and  induftrious  fubjeft,  who  pays  his  mare  of  the  taxes, 
to  maintain  the  indolent  and  idle  creditor  who  receives  them. 
Laftly,  and  principally,  it  weakens  the  internal  ftrength  of  a  ftate, 
by  anticipating  thofe  refources  which  mould  be  referved  to  defend 
it  in  cafe  of  necefilty.  The  intereft  we  now  pay  for  our  debts 
would  be  nearly  fufficient  to  maintain  any  war,  that  any  national 
motives  could  require.  And  if  our  anceftors  in  king  William's 
time  had  annually  paid,  fo  long  as  their  exigencies  lafted,  even 
a  lefs  fum  than  we  now  annually  raife  upon  their  accounts,  they 
would  in  the  time  of  war  have  born  no  greater  burdens,  than 
they  have  bequeathed  to  and  fettled  upon  their  pofterity  in  time 
of  peace ;  and  might  have  been  eafed  the  inftant  the  exigence 
was  over. 

THE  produce  of  the  feveral  taxes  beforementioned  were  origi- 
nally feparate  and  difrinct  funds ;  being  fecurities  for  the  fums 
advanced  on  each  feveral  tax,  and  for  them  only.  But  at  laft  it 
became  necefiary,  in  order  to  avoid  confullon,  as  they  multiplied 
yearly,  to  reduce  the  number  of  thefe  feparate  funds,  by  uniting 
and  blending  them  together  ;  fuperaddihg  the  faith  of  parliament 
for  the  general  fecurity  of  the  whole.  So  that  there  are  now  only 
three  capital  funds  of  any  account,  the  aggregate  fund,  and  the 
general  fund,  fo  called  from  fuch  union  and  addition ;  and  thejouth 

Jea 


Ch.  8.  of    PERSONS.  329 

fea  fund,  being  the  produce  of  the  taxes  appropriated  to  pay  the 
intereft  of  fuch  part  of  the  national  debt  as  was  advanced  by  that 
company  and  it's  annuitants.  Whereby  the  feparate  funds,  which 
were  thus  united,  are  become  mutual  fecurities  for  each  other ; 
and  the  whole  produce  of  them,  thus  aggregated,  liable  to  pay 
fuch  intereft  or  annuities  as  were  formerly  charged  upon  each  dii- 
tinc"l  fund;  the  faith  of  the  legiflature  being  moreover  engaged 
to  fupply  any  cafual  deficiences. 

THE  cuftoms,  excifes,  and  other  taxes,  which  are  to  fupport 
thefe  funds,  depending  on  contingencies,  upon  exports,  imports, 
and  confumptions,  muft  necefTarily  be  of  a  very  uncertain  amount; 
but  they  have  always  been  coniiderably  more  than  was  fufficient 
to  anfwer  the  charge  upon  them.  The  furplufies  therefore  of  the 
three  great  national  funds,  the  aggregate,  general,  and  fouth  fea 
funds,  over  and  above  the  intereft  and  annuities  charged  upon 
them,  are  directed  by  ftatute  3  Geo.  I.  c.  7.  to  be  carried  toge- 
ther, and  to  attend  the  difpofition  of  parliament ;  and  are  ufually 
denominated  the  Jinking  fund,  becaufe  originally  deftined  to  fink 
and  lower  the  national  debt.  To  this  have  been  fmce  added  many 
other  intire  duties,  granted  in  fubfequent  years ;  and  the  annual 
intereft  of  the  fums  borrowed  on  their  refpective  credits  is  charged 
on  and  payable  out  of  the  produce  of  the  linking  fund.  How- 
ever the  neat  furplufles  and  favings,  after  all  deductions  paid, 
amount  annually  to  a  very  considerable  fum ;  particularly  in  the 
year  ending  at  Chriftmas  1764,  to  about  two  millions  and  a  quar- 
ter. For,  as  the  intereft  on  the  national  debt  has  been  at  feveral 
times  reduced,  (by  the  confent  of  the  proprietors,  who  had  their 
option  either  to  lower  their  intereft  or  be  paid  their  principal) 
the  favings  from  the  appropriated  revenues  muft  needs  be  ex- 
tremely large.  This  finking  fund  is  the  laft  relbrt  of  the  nation  ; 
it's  only  domeftic  refource,  on  which  muft  chiefly  depend  all  the 
hopes  we  can  entertain  of  ever  difcharging  or  moderating  our  in- 
cumbrances.  And  therefore  the  prudent  application  of  the  large 
fums,  now  arifing  from  this  fund,  is  a  point  of  the  utmoft  im- 
portance, and  well  worthy  the  ferious  attention  of  parliament  j 

S  f  which 


330  The    RIGHTS  BOOK!, 

which  was  thereby  enabled,  in  the  year  1765,  to  reduce  above 
two  millions  fterling  of  the  public  debt. 

BUT,  before  any  part  of  the  aggregate  fund  (the  furpluffes 
whereof  are  one  of  the  chief  ingredients  that  form  the  finking 
fund)  can  be  applied  to  diminifh  the  principal  of  the  public  debt, 
it  ftands  mortgaged  by  parliament  to  raife  an  annual  fum  for  the 
maintenance  of  the  king's  houfliold  and  the  civil  lift.  For  this 
purpofe,  in  the  late  reigns,  the  produce  of  certain  branches  of 
the  excife  and  cuftoms,  the  poft-office,  the  duty  on  wine  licen- 
ces, the  revenues  of  the  remaining  crown  lands,  the  profits  ari- 
fing  from  courts  of  juftice,  (which  articles  include  all  the  heredi- 
tary revenues  of  the  crown)  and  alfo  a  clear  annuity  of  1 20000 /. 
in  money,  were  fettled  on  the  king  for  life,  for  the  fupport 
of  his  majefty's  houfliold,  and  the  honour  and  dignity  of  the 
crown.  And,  as  the  Amount  of  thefe  feveral  branches  was  un- 
certain, (though  in  the  laft  reign  they  were  computed  to  have 
fometimes  raifed  almoft  a  million)  if  they  did  not  arife  annually 
to  800, ooo/.  the  parliament  engaged  to  make  up  the  deficiency. 
But  his  prefent  majefty  having,  foon  after  his  acceffion,  fponta- 
neouflyfignified  his  confent,  that  his  own  hereditary  revenues  might 
be  fo  difpofed  of  as  might  beft  conduce  to  the  utility  and  fatis- 
fadlion  of  the  public,  and  having  gracioufly  accepted  the  limited 
fum  of  800000 /.  per  annum  for  the  fupport  of  his  civil  lift  (and 
that  alfo  charged  with  three  life  annuities,  to  the  princefs  of  Wales, 
the  duke  of  Cumberland,  and  the  princefs  Amelia,  to  the  amount 
of  77000 /.)  the  faid  hereditary  and  other  revenues  are  now  car- 
ried into  and  made  a  part  of  the  aggregate  fund,  and  the  aggre- 
gate fund  is  charged  with  the  payment  of  the  whole  annuity  to 
the  crown  of  800000 /.  per  annum*.  Hereby  the  revenues  them- 
felves,  being  put  under  the  fame  care  and  management  as  the  other 
branches  of  the  public  patrimony,  will  produce  more  and  be  bet- 
ter collected  than  heretofore ;  and  the  public  is  a  gainer  of  up- 
wards of  icoooo/.  per  annum  by  this  diiinterefted  bounty  of  his 
majefty.  The  civil  lift,  thus  liquidated,  together  with  the  four 

f  Stat.  iGto.  III.  c.i. 

millions 


Ch.  8.  of   PERSONS.  331 

millions  and  three  quarters,  intereft  of  the  national  debt,  and  the 
two  millions  and  a  quarter  produced  from  the  linking  fund,  make 
up  the  feven  millions  and  three  quarters  per  annum,  neat  money, 
which  were  before  ftated  to  be  the  annual  produce  of  our  perpe- 
tual taxes  j  befides  the  immenle,  though  uncertain,  fums  arifing 
from  the  annual  taxes  on  land  and  malt,  but  which,  at  an  aver- 
age, may  be  calculated  at  more  than  two  millions  and  a  quarter ; 
and,  added  to  the  preceding  fum,  make  the  clear  produce  of  the 
taxes,  exclulive  of  the  charge  of  collecting,  which  are  railed  yearly 
on  the  people  of  this  country,  amount  to  upwards  of  ten  mil- 
lions fterling. 

THE  expenfes  defrayed  by  the  civil  lift  are  thole  that  in  any 
fhape  relate  to  civil  government;  as,  the  expenfes  of  the  houlhold; 
all  falaries  to  officers  of  Hate,  to  the  judges,  and  every  of  the  king's 
fervantsj  the  appointments  to  foreign  embaffadors;  the  maintenance 
of  the  queen  and  royal  family ;  the  king's  private  expenfes,  or 
privy  purfe ;  and  other  very  numerous  outgoings,  as  fecret  fer- 
vice  money,  penfions,  and  other  bounties  :  which  fometimes  have 
fo  far  exceeded  the  revenues  appointed  for  that  purpofe,  that  ap- 
plication has  been  made  to  parliament  to  difcharge  the  debts  con- 
tracted on  the  civil  lift;  as  particularly  in  1724,  when  one  million 
was  granted  for  that  purpofe  by  the  ftatute  1 1  Geo.  I.  c.  17. 

THE  civil  lift  is  indeed  properly  the  whole  of  the  king's  re- 
venue in  his  own  diftinct  capacity ;  the  reft  being  rather  the  re- 
venue of  the  public,  or  it's  creditors,  though  collected,  and  dif- 
tributed  again,  in  the  name  and  by  the  officers  of  the  crown  : 
it  now  ftanding  in  the  fame  place,  as  the  hereditary  income  did 
formerly;  and,  as  that  has  gradually  diminifhed,  the  parliamen- 
tary appointments  have  encreafed.  The  whole  revenue  of  queen 
Elizabeth  did  not  amount  to  more  than  6ooooo/.  a  year5:  that 
of  king  Charles  I  was  h  800000 /.  and  the  revenue  voted  for 
king  Charles  II  was  '  1 200000 /.  though  complaints  were  made 

i  Lord  Clar.  continuation.  163.  '  Ibid. 

h  Corn.  Journ.  4  Sept.  1660. 

Sfa  (in 


332  The    RIGHTS  BOOK  I. 

( in  the  firft  years  at  leaft)  that  it  did  not  amount  to  fo  much  k. 
But  it  muft  be  obferved,  that  under  thefe  fums  were  included  all 
manner  of  public  expenfes,  among  which  lord  Clarendon  in  his 
fpeech  to  the  parliament  computed  that  the  charge  of  the  navy 
and  land  forces  amounted  annually  to  800000 /.  which  was  ten 
times  more  than  before  the  former  troubles '.   The  fame  revenue, 
fubject  to  the  fame  charges,  was  fettled  on  king  James  II  m  :  but 
by  the  encreafe  of  trade,  and  more  frugal  management,  it  amount- 
ed on  an  average  to  a  million  and  half  per  annum,   (befides  other 
additional  cuftoms,  granted  by  parliament",  which  produced  an 
annual  revenue  of  4000007.)   out  of  which  his  fleet  and  army 
were  maintained  at  the  yearly  expenfe  of  °  i  looooo/.     After  the 
revolution,  when  the  parliament  took  into  it's  own  hands  the  an- 
nual fupport  of  the  forces  both  maritime  and  military,  a  civil 
lift  revenue  was  fettled  on  the  new  king  and  queen,  amounting, 
with  the  hereditary  duties,  to  700000  /.  per  annum f  -,    and  the 
fame  was  continued  to  queen  Anne  and  king  George  I q.    That 
of  king  George  II,  we  have  feen,  was  nominally  augmented  to 
r  800000  /.  and  in  fact  was  considerably  more.     But  that  of  his 
prefent  majefty  is  expreflly  limited  to  that  fum  ;    and,   by  reafon 
of  the  charges  upon  it,  amounts  at  prefent  to  little  more  than 
700000  /.     And  upon  the  whole  it  is  doubtlefs   much  better  for 
the  crown,  and  alfo  for  the  people,  to  have  the  revenue  fettled 
upon  the  modern  footing  rather  than  the  antient.    For  the  crown  ; 
becaufe  it  is  more  certain,   and  collected  with  greater  eafe  :    for 
the  people;   becaufe  they  are  now  delivered  from  the  feodal  hard- 
fhips,  and  other  odious  branches  of  the  prerogative.    And  though 
complaints  have  fometimes  been  made  of  the  encreafe  of  the  civil 
lift,  yet  if  we  confider  the  fums  that  have  been  formerly  granted, 
the  limited  extent  under  which  it  is  now  eftablimed,  the  reve- 
nues and  prerogatives  given  up  in  lieu  of  it  by  the  crown,  and 
(above  all)  the  diminution  of  the  value  of  money  compared  with 

k  Ibid.  4jun.  1663.    Lord  Clar.  ibid.  °  Com.  Journ.    I  Mar.    20  Mar.  1688. 

1  Ibid.  165.  t  Ibid.    14  Mar.  1701. 

m  Stat.  i  Jac.  II.  c.l.  q  Ibid.   17  Mar.  1701.    nAug.  1714. 

*  Ibid.  c.  3  &-  4,  '  Stat.  l  Geo.  II.  c.  I. 

what 


Ch.  8.  of    PERSONS.  335 

what  it  was  worth  in  the  laft  century,  we  muft  acknowlege  thefe 
complaints  to  be  void  of  any  rational  foundation ;  and  that  it  is 
impofiible  to  fupport  that  dignity,  which  a  king  of  Great  Britain 
fhould  maintain,  with  an  income  in  any  degree  lefs  than  what  is 
now  eftablifhed  by  parliament. 

THIS  finime-s  our  enquiries  into  the  fifcal  prerogatives  of 
the  king ;  or  his  revenue,  both  ordinary  and  extraordinary. 
We  have  therefore  now  chalked  out  all  the  principal  outlines 
of  this  vail  title  of  the  law,  the  fupreme  executive  magistrate,  or 
the  king's  majefty,  confidered  in  his  feveral  capacities  and  points 
of  view.  But,  before  we  intirely  difmifs  this  fubjeft,  it  may  not 
be  improper  to  take  a  ihort  comparative  review  of  the  power  of 
the  executive  magiftrate,  or  prerogative  of  the  crown,  as  it  flood 
in  former  days,  and  as  it  ftands  at  prefent.  And  we  cannot  but 
obferve,  that  moft  of  the  laws  for  afcertaining,  limiting,  and  re- 
ftraining  this  prerogative  have  been  made  within  the  compafs  of 
little  more  than  a  century  pafl  j  from  the  petition  of  right  in 
3  Car.  I.  to  the  prefent  time.  So  that  the  powers  of  the  crown- 
are  now  to  all  appearance  greatly  curtailed  and  diminiftied  lince 
the  reign  of  king  James  the  firft :  particularly,  by  the  abolition 
of  the  ftar  chamber  and  high  commiffion  courts  in  the  reign  of 
Charles  the  firfl,  and  by  the  difclaiming  of  martial  law,  and  the 
power  of* levying  taxes  on  the  fubjecl,  by  the  fame  prince  :  by 
the  difufe  of  foreft  laws  for  a  century  paft  :  and  by  the  many  ex- 
cellent provifions  enacted  under  Charles  the  fecond  ;  efpecially, 
the  abolition  of  military  tenures,  purveyance,  and  pre-emption ; 
the  habeas  corpus  aft ;  and  the  aft  to  prevent  the  difcontinuance 
of  parliaments  for  above  three  years  :  and,  fmce  the  revolution,, 
by  the  flrong  and  emphatical  words  in  which  our  liberties  are  af- 
ferted  in  the  bill  of  rights,  and  aft  of  fettlement ;  by  the  aft  for 
triennial,  fince  turned  into  feptennial,  eleftions ;  by  the  exclufion 
of  certain  officers  from  the  houfe  of  commons  ;  by  rendering  the 
feats  of  the  judges  permanent,  and  their  falaries  independent;  and 
by  reftraining  the  king's  pardon  from  being  pleaded  to  parlia- 
mentary impeachments.  'Befides  all  this,  if  we  confider  how  the 

crown 


334-  I7je    RIGHTS  BOOK!. 

crown  is  impoverished  and  {tripped  of  all  it's  antient  revenues, 
fo  that  it  greatly  depends  on  the  liberality  of  parliament  for 
it's  neceSTary  fupport  and  maintenance,  we  may  perhaps  be 
led  to  think,  that  the  ballance  is  inclined  pretty  ftrongly  to 
the  popular  fcale,  and  that  the  executive  magistrate  has  neither 
independence  nor  power  enough  left,  to  form  that  check  upon 
the  lords  and  commons,  which  the  founders  of  our  constitution 
intended. 

BUT,  on  the  other  hand,  it  is  to  be  considered,  that  every 
prince,  in  the  firSt  parliament  after  his  acceSTion,  has  by  long  ufage 
a  truly  royal  addition  to  his  hereditary  revenue  fettled  upon  him 
for  his  life  -,  and  has  never  any  occaiion  to  apply  to  parliament 
for  fupplies,  but  upon  fome  public  neceSTity  of  the  whole  realm. 
This  reStores  to  him  that  conftitutional  independence,  which  at 
his  firft  acceSTion  feems,  it  mufl  be  owned,  to  be  wanting.  And 
then,  with  regard  to  power,  we  may  find  perhaps  that  the  hands 
of  government  are  at  leaft  fufficiently  ftrengthened ;  and  that  an 
EngliSh  monarch  is  now  in  no  danger  of  being  overborne  by  either 
the  nobility  or  the  people.  The  instruments  of  power  are  not 
perhaps  fo  open  and  avowed  as  they  formerly  were,  and  therefore 
are  the  lefs  liable  to  jealous  and  invidious  reflections ;  but  they 
are  not  the  weaker  upon  that  account.  In  Short,  our  national 
debt  and  taxes  (befides  the  inconveniences  before-mentioned)  have 
alfo  in  their  natural  confequences  thrown  fuch  a  weight  of  power 
into  the  executive  fcale  of  government,  as  we  cannot  think  was 
intended  by  our  patriot  anceitors ;  who  gloriouSly  Struggled  for 
the  abolition  of  the  then  formidable  parts  of  the  prerogative,  and 
by  an  unaccountable  want  of  forefight  eftabliilied  this  fyStem  in 
their  Stead.  The  entire  collection  and  management  of  fo  vaft  a 
revenue,  being  placed  in  the  hands  of  the  crown,  have  given  rife 
to  fuch  a  multitude  of  new  officers,  created  by  and  removeable 
at  the  royal  pleafure,  that  they  have  extended  the  influence  of 
o-overnment  to  every  corner  of  the  nation.  Witnefs  the  commif- 
fioners,  and  the  multitude  of  dependents  on  the  cuftoms,  in  every 

port 


Ch.  8.  ^PERSONS.  335 

port  of  the  kingdom  ;  the  commiffioners  of  excife,  and  their 
numerous  fubalterns,  in  every  inland  diftricl;  the  poftmafters,  and 
their  fervants,  planted  in  every  town,  and  upon  every  public  road; 
the  commiiTioners  of  the  ftamps,  and  their  distributors,  which 
are  full  as  fcattered  and  full  as  numerous ;  the  officers  of  the  fait 
duty,  which,  though  a  fpecies  of  excife  and  conducted  in  the  fame 
manner,  are  yet  made  a  diftindr.  corps  from  the  ordinary  managers 
of  that  revenue ;  the  furveyors  of  houfes  and  windows ;  the  re- 
ceivers of  the  land  tax  ;  the  managers  of  lotteries  ;  and  the  com- 
miffioners of  hackney  coaches ;  all  which  are  either  mediately  or 
immediately  appointed  by  the  crown,  and  removeable  at  pleafure 
without  any  reafon  affigned  :  thefe,  it  requires  but  little  penetra- 
tion to  fee,  muft  give  that  power,  on  which  they  depend  for  fub- 
fiftence,  an  influence  moil  amazingly  extenfive.  To  this  may  be 
added  the  frequent  opportunities  of  conferring  particular  obliga- 
tions, by  preference  in  loans,  fubfcriptions,  tickets,  remittances, 
and  other  money-tranfaclions,  which  will  greatly  encreafe  this 
influence ;  and  that  over  thofe  perfons  whofe  attachment,  on 
account  of  their  wealth,  is  frequently  the  mofl  defirable.  All  this 
is  the  natural,  though  perhaps  the  unforefeen,  confequence  of 
eredting  our  funds  of  credit,  and  to  fupport  them  eftablifhing 
our  prefent  perpetual  taxes  :  the  whole  of  which  is  entirely  new 
fince  the  refloration  in  1660;  and  by  far  the  greatest  part  fmce 
the  revolution  in  1688.  And  the  fame  may  be  faid  with  regard 
to  the  officers  in  our  numerous  army,  and  the  places  which 
the  army  has  created.  All  which  put  together  gives  the  execu- 
tive power  fo  perfualive  an  energy  with  refpedt  to  the  perfons 
themfelves,  and  fo  prevailing  an  intereft  with  their  friends  and 
families,  as  will  amply  make  amends  for  the  lofs  of  external 
prerogative. 

BUT,  though  this  profufion  of  offices  fhould  have  no  effect  on 
individuals,  there  is  ftill  another  newly  acquired  branch  of  power; 
and  that  is,  not  the  influence  only,  but  the  force  of  a  difciplined 
army  :  paid  indeed  ultimately  by  the  people,  but  immediately  by 

the 


336  7$£- RIGHTS  BOOK!. 

the  crown ;  raifed  by  the  crown,  officered  by  the  crown,  com- 
manded by  the  crown.  They  are  kept  on  foot  it  is  true  only  from 
year  to  year,  and  that  by  the  power  of  parliament :  but  during 
that  year  they  muft,  by  the  nature  of  our  conftitution,  if  raifed 
at  all,  be  at  the  abfolute  difpofal  of  the  crown.  And  there  need 
but  few  words  to  demonftrate  how  great  a  truft  is  thereby  repo- 
fed  in  the  prince  by  his  people.  A  trait,  that  is  more  than  equi- 
valent to  a  thoufand  little  troublefome  prerogatives. 

A  D  D  to  all  this,  that,  befides  the  civil  lift,  the  immenfe  re- 
venue of  feven  millions  fterling,  which  is  annually  paid  to  the 
creditors  of  the  public,  or  carried  to  the  finking  fund,  is  firft 
depofited  in  the  royal  exchequer,  and  thence  ifTued  out  to  the 
respective  offices  of  payment.  This  revenue  the  people  can  never 
refufe  to  raife,  becaufe  it  is  made  perpetual  by  aft  of  parliament : 
which  alfo,  when  well  confidered,  will  appear  to  be  a  trufl  of 
great  delicacy  and  high  importance. 

UPON  the  whole  therefore  I  think  it  is  clear,  that,  whatever 
may  have  become  of  the  nominal,  the  real  power  of  the  crown 
has  not  been  too  far  weakened  by  any  tranfactions  in  the  laft  cen- 
tury. Much  is  indeed  given  up;  but  much  is  alfo  required.  The 
flern  commands  of  prerogative  have  yielded  to  the  milder  voice 
of  influence ;  the  flavifh  and  exploded  doctrine  of  non-refiflance 
has  given  way  to  a  military  eftablimment  by  law ;  and  to  the 
difufe  of  parliaments  has  fucceeded  a  parliamentary  truft  of  an 
immenfe  perpetual  revenue.  When,  indeed,  by  the  free  opera- 
tion of  the  finking  fund,  our  national  debts  fhall  be  lefTened ; 
when  the  pofture  of  foreign  affairs,  and  the  univerfal  introduc- 
tion of  a  well  planned  and  national  militia,  will  fuffer  our  for- 
midable army  to  be  thinned  and  regulated ;  and  when  ( in  con- 
fequence  of  all)  our  taxes  mail  be  gradually  reduced;  this  ad- 
ventitious power  of  the  crown  will  flowly  and  imperceptibly  di- 
mihilh,  as  it  flowly  and  imperceptibly  rofe.  But,  till  that  fhall 
happen,  it  will  be  our  efpecial  duty,  as  good  fubjects  and  good 

Engliflimen, 


Ch.  8.  of    PERSONS.  337 

Englishmen,  to  reverence  the  crown,  and  yet  guard  againft  cor- 
rupt and  fervile  influence  from  thofe  who  are  intrufted  with  it's 
authority ;  to  be  loyal,  yet  free ;  obedient,  and  yet  independent ; 
and,  above  every  thing,  to  hope  that  we  may  long,  very  long* 
continue  to  be  governed  by  a  fovereign,  who,  in  all  thofe  public 
acls  that  have  perfonally  proceeded  from  himfelf,  hath  mani- 
fefted  the  higheft  veneration  for  the  free  constitution  of  Britain ; 
hath  already  in  more  than  one  inftance  remarkably  Strengthened 
it's  outworks;  and  will  therefore  never  harbour  a  thought,  or 
adopt  a  perfuafion,  in  any  the  remoteft  degree  detrimental  to 
public  liberty. 


Tt 


338  The    RIGHTS  BOOK  I. 


CHAPTER     THE      NINTH. 
OF     SUBORDINATE     MAGISTRATES. 


N  a  former  chapter  of  thefe  commentaries  a  we  diftinguifhed 
magiftrates  into  two  kinds ;  fupreme,  or  thofe  in  whom  the 
fovereign  power  of  the  State  refides  j  and  fubordinate,  or  thofe 
who  act  in  an  inferior  fecondary  fphere.  We  have  hitherto  con- 
fidered  the  former  kind  only,  namely,  the  fupreme  legislative 
power  or  parliament,  and  the  fupreme  executive  power,  which  is 
the  king :  and  are  now  to  proceed  to  enquire  into  the  rights  and 
duties  of  the  principal  fubordinate  magiftrates. 

AND  herein  we  are  not  to  investigate  the  powers  and  duties 
of  his  majefty's  great  officers  of  State,  the  lord  treafurer,  lord 
chamberlain,  the  principal  fecretaries,  or  the  like ;  becaufe  I  do 
not  know  that  they  are  in  that  capacity  in  any  considerable  degree 
the  objects  of  our  laws,  or  have  any  very  important  mare  of  ma- 
giStracy  conferred  upon  them  :  except  that  the  fecretaries  of  State 
are  allowed  the  power  of  commitment,  in  order  to  bring  offend- 
ers to  trial b.  Neither  mall  I  here  treat  of  the  office  and  autho- 
rity of  the  lord  chancellor,  or  the  other  judges  of  the  Superior 
courts  of  juftice  ;  becaufe  they  will  find  a  more  proper  place  in 
the  third  part  of  thefe  commentaries.  Nor  Shall  I  enter  into  any 
minute  difquifitions,  with  regard  to  the  rights  and  dignities  of 

*  ch.  2.  pag.  146.  b  i  Leon.  70.    2  Leon.  175.    Comb.  343. 

5  Mod.  84.  Salk.  347. 

mayors 


Ch.  9.  of    PERSONS.  339 

mayors  and  aldermen,  or  other  magiftrates  of  particular  corpora- 
tions; becaufe  thefe  are  mere  private  and  ftridtly  municipal 
rights,  depending  entirely  upon  the  domeftic  conititution  of  their 
respective  franchifes.  But  the  magiftrates  and  officers,  whole 
rights  and  duties  it  will  be  proper  in  this  chapter  to  confider,  are 
fuch  as  are  generally  in  uSe  and  have  a  jurisdiction  and  authority 
difperfedly  throughout  the  kingdom  :  which  are,  principally, 
meriffs  ;  coroners  ;  juftices  of  the  peace  ;  conftables  ;  Surveyors 
of  highways  ;  and  overfeers  of  the  poor.  In  treating  of  all  which 
I  mall  enquire  into,  firSt,  their  antiquity  and  original ;  next,  the 
manner  in  which  they  are  appointed  and  may  be  removed;  and, 
laftly,  their  rights  and  duties.  And  firSt  of  fheriffs. 

I.  TH  E  Sheriff  is  an  officer  of  very  great  antiquity  in  this  king- 
dom, his  name  being  derived  from  two  Saxon  words,  fciji  jenepa, 
the  reeve,  bailiff,  or  officer  of  the  fhire.  He  is  called  in  Latin 
vice-comes,  as  being  the  deputy  of  the  earl  or  comes ;  to  whom 
the  cuftody  of  the  mire  is  Said  to  have  been  committed  at  the  firSt 
divifion  of  this  kingdom  into  counties.  But  the  earls  in  procefs 
of  time,  by  reafon  of  their  high  employments  alid  attendance  on 
the  king's  perfon,  not  being  able  to  tranSact  the  buSmeSs  of  the 
county,  were  delivered  of  that  burden  c ;  referving  to  them/elves 
the  honour,  but  the  labour  was  laid  on  the  Sheriff.  So  that  now 
the  fheriff  does  all  the  king's  buSmeSs  in  the  county  ;  and  though, 
he  be  Slill  called  vice-comes,  yet  he  is  entirely  independent  of,  and. 
not  Subject  to  the  earl ;  the  king  by  his  letters  patent  committing. 
cujiodiam  comitatus  to  the  fheriff,  and  him  alone. 

SHERIFFS  were  formerly  chofen  by  the  inhabitants  of  the 
Several  counties.  In  confirmation  of  which  it  was  ordained  by 
Statute  28  Edw.  I.  c.  8.  that  the  people  mould  have  election  of 
fheriffs  in  every  {hire,  where  the  Shrievalty  is  not  of  inheritance. 
For  antiently  in  Some  counties  the  meriffs  were  hereditary  ;  as  I 
apprehend  they  were  in  Scotland  till  the  Slatute  20  Geo.  II.  c.  43; 
and  Slill  continue  in  the  county  of  Weflmorland  to  this  day  : 

c  Dahon  of  fheriffs.  c.  r. 

T  t  2  the 


34-O  Tlie    RIGHTS  BOOK!. 

the  city  of  London  having  alfo  the  inheritance  of  the  Shrievalty 
of  Middlefex  vetted  in  their  body  by  charter  d.  The  reafon  of 
thefe  popular  elections  is  affigned  in  the  lame  Statute,  c.  13.  "that 
"  the  commons  might  chuie  fuch  as  would  not  be  a  burthen  to 
"  them."  And  herein  appears  plainly  a  Strong  trace  of  the  de- 
mocratical  part  of  our  constitution  ;  in  which  form  of  govern- 
ment it  is  an  indifpenfable  requisite,  that  the  people  ihould  chufe 
their  own  magistrates e.  This  election  was  in  all  probability  not 
abfolutely  veSted  in  the  commons,  but  required  the  royal  appro- 
bation. For  in  the  Gothic  constitution,  the  judges  of  their  county 
courts  (which  office  is  executed  by  our  Sheriff)  were  elected  by 
the  people,  but  confirmed  by  the  king  :  and  the  form  of  their 
election  was  thus  managed ;  the  people,  or  incolae  territoril,  choSe 
tiuefoe  electors,  and  they  nominated  three  perfons,  ex  quibus  rex 
unum  confirmabat f.  But,  with  us  in  England,  thefe  popular  elec- 
tions, growing  tumultuous,  were  put  an  end  to  by  the  Statute 
9  Edw.  II.  St.  2.  which  enacted,  that  the  Sheriffs  Should  from 
thenceforth  be  affigned  by  the  chancellor,  treafurer,  and  the 
judges  ;  as  being  perSbns  in  whom  the  fame  truSt  might  with  con- 
fidence be  repofed.  By  Statutes  14  Edw.  III.  c.  7.  23  Hen. VI. 
c.  8.  and  21  Hen. VIII.  c.  20.  the  chancellor,  treafurer,  prefident 
of  the  king's  council,  chief  juStices,  and  chief  baron,  are  to  make 
this  election;  and  that  on  the  morrow  of  All  Souls  in  the  exche- 
quer. And  the  king's  letters  patent,  appointing  the  new  Sheriffs, 
ufed  commonly  to  bear  date  the  fixth  day  of  November g.  The 
ftatute  of  Cambridge,  12  Ric.  II.  c.  2.  ordains,  that  the  chan- 
cellor, treafurer,  keeper  of  the  privy  feal,  Steward  of  the  king's 
houfe,  the  king's  chamberlain,  clerk  of  the  rolls,  the  juStices  of 
the  one  bench  and  the  other,  barons  of  the  exchequer,  and  all 
other  that  Shall  be  called  to  ordain,  name,  or  make  juStices  of 
the  peace,  Jheriff's,  and  other  officers  of  the  king,  Shall  be  fworn 
to  act  indifferently,  and  to  name  no  man  that  fueth  to  be  put  in 
office,  but  fuch  only  as  they  Shall  judge  to  be  the  beSt  and  moSt 
Sufficient.  And  the  cuftom  now  is  (and  has  been  at  leaSt  ever 

d  3  Rep.  72.  f  Stiernh.  tie  jure  Goth.  L\.  c.  3. 

e  Montefq.  Sp.  L.  b.  z.  c.2.  *  Stat.  12 Edw.  IV.  c.  I. 

fince 


Ch.  9.  0/*    PERSONS.  341 

fmce  the  time  of  Fortefcueh,  who  was  chief  juftice  and  chan- 
cellor to  Henry  the  fixth)  that  all  the  judges,  together  with  the 
other  great  officers,  meet  in  the  exchequer  chamber  on  the  mor- 
row of  All  Souls  yearly,  (which  day  is  now  altered  to  the  mor- 
row of  St.   Martin  by  the  lafl  aft  for  abbreviating  Michaelmas 
term)  and  then  and  there  propofe  three  perfons  to  the  king,  who 
afterwards  appoints  one  of  them  to  be  fherifF.    This  cuftom,  of 
the  twelve  judges  propofing  three  perfons,  feems  borrowed  from 
the  Gothic  conftitution  before-mentioned  ;  with  this  difference, 
that  among  the  Goths  the  twelve  nominors  were  firft  elected  by 
the  people  themfelves.  And  this  ufage  of  ours  at  it's  firft  intro- 
duction, I  am  apt  to  believe,  was  founded  upon  fome  ftatute, 
though  not  now  to  be  found  among  our  printed  laws  :    firft,  be- 
caufe  it  is  materially  different  from  the  directions  of  all  the  fta- 
tutes  before-mentioned ;    which  it  is  hard  to  conceive  that  the 
judges  would  have  countenanced  by  their  concurrence,  or  that 
Fortefcue  would  have  inferted  in  his  book,  unlefs  by  the  autho- 
rity of  fome  ftatute  :    and  alfo,  becaufe  a  ftatute  is  expreifly  re- 
ferred to  in  the  record,  which  fir  Edward  Coke  tells  usJ  he  tranf- 
cribed  from  the  council  book  of  3  Mar.   34  Hen. VI.  and  which 
is  in  fubftance  as  follows.    The  king  had  of  his  own  authority 
appointed  a  man  fheriff  of  Lincolnfhire,  which  office  he  refufed 
to  take  upon  him  :    whereupon  the  opinions  of  the  judges  were 
taken,  what  mould  be  done  in  this  behalf.    And  the  two  chief 
juftices,  fir  John  Fortefcue  and  fir  John  Prifot,  delivered  the  un- 
animous opinion  of  them  all ;  "  that  the  king  did  an  error  when 
"  he  made  a  perfon  fherifF,  that  was  not  chofen  and  prefented  to 
"  him  according  to  \heftatitte  -,  that  the  perfon  refufing  was  liable 
"to  no  fine  for  difobedience,  as  if  he  had  been  one  of  the  three 
"  perfons  chofen  according  to  die  tenor  of  \hzjlatute-,  that  they 
"  would  advife  the  king  to  have  recourfe  to  the  three  perfons  that 
"  were  chofen  according  to  thejtatute,  or  that  fome  other  thrifty 
"man  be  intreated  to  occupy  the  office  for  this  year;  and  that, 
"  the  next  year,  to  efchew  fuch  inconveniences,  the  order  of  the 
"Jlatute  in  this  behalf  may  be  obferved."    But,  notwithftanding 

"  deL.L.  f.  24.  '  zlnft.  559. 

this 


342  The    RIGHTS  BOOK!. 

this  unanimous  refolution  of  all  the  judges  of  England,  thus  en- 
tered in  the  council  book,  and  the  flatute  34  6c  35Hen.VIII.  0.26. 
§.  6 1.  which  expreffly  recognizes  this  to  be  the  law  of  the  land, 
fome  of  our  writers '  have  affirmed,  that  the  king,  by  his  prero- 
gative, may  name  whom  he  pleafes  to  be  fherifF,  whether  chofen 
by  the  judges  or  no.  This  is  grounded  on  a  very  particular  cafe 
in  the  fifth  year  of  queen  Elizabeth,  when,  by  reafon  of  the 
plague,  there  was  no  Michaelmas  term  kept  at  Weftminfter ;  fo 
that  the  judges  could  not  meet  there  in  craftino  animarwn  to  no- 
minate the  meriffs  :  whereupon  the  queen  named  them  herfelf, 
without  fuch  previous  affembly,  appointing  for  the  moft  part  one 
of  the  two  remaining  in  the  laft  year's  liftk.  And  this  cafe,  thus 
circumftanced,  is  the  only  authority  in  our  books  for  the  making 
thefe  extraordinary  fheriffs.  It  is  true,  the  reporter  adds,  that  it 
was  held  that  the  queen  by  her  prerogative  might  make  a  fheriff 
without  the  election  of  the  judges,  non  objlante  aliquo  Jlatnto  in 
contrarium:  but  the  doctrine  of  non  objiantes,  which  fets  the  pre- 
rogative above  the  laws,  was  effectually  demoliflied  by  the  bill  of 
rights  at  the  revolution,  and  abdicated  Weftminfter-hall  when 
king  James  abdicated  the  kingdom.  However,  it  muft  be  ac- 
knowleged,  that  the  practice  of  occafionally  naming  what  are 
called  pocket- IherifFs,  by  the  fole  authority  of  the  crown,  hath 
been  uniformly  continued  to  this  day. 

SHERIFFS,  by  virtue  of  feveral  old  flatutes,  are  to  continue 
in  their  office  no  longer  than  one  year;  and  yet  it  hath  been  faid1 
that  a  fheriff  may  be  appointed  durante  bene  placito,  or  during  the 
king's  pleafure ;  and  fo  is  the  form  of  the  royal  writ  m.  There- 
fore, till  a  new  fherifF  be  named,  his  office  cannot  be  determi- 
ned, unlefs  by  his  own  death,  or  the  demife  of  the  king  ;  in 
which  laft  cafe  it  was  ufual  for  the  fucceffor  to  fend  a  new  writ  to 
the  old  fherifF"  :  but  now  by  ftatute  i  Ann.  ft.  i.  c.  8.  all  offi- 
cers appointed  by  the  preceding  king  may  hold  their  offices  for  fix 

*  Jenkins.  229.  ™  Dalt.  of  ftieriffs.  8. 

k  Dyer.  225.  n  Dalt.  7. 

1  4  Rep,  32.. 

months 


Ch.  9.  of    PERSONS.  34.3 

months  after  the  king's  demife,  unlefs  fooner  difplaced  by  the 
fucceflbr.  We  may  farther  obferve,  that  by  ftatute  iRic.  II.  c.  i  r. 
no  man,  that  has  ferved  the  office  of  merifffor  one  year,  can  be 
compelled  to  ferve  the  fame  again  within  three  years  after. 

WE  mall  find  it  is  of  the  utmoft  importance  to  have  the  fheriff 
appointed  according  to  law,  when  we  confider  his  power  and 
duty.  Thefe  are  either  as  a  judge,  as  the  keeper  of  the  king's 
peace,  as  a  minifterial  officer  of  the  fuperior  courts  of  juflice,  or 
as  the  king's  bailiff. 

IN  his  judicial  capacity  he  is  to  hear  and  determine  all  caufes 
of  forty  {hillings  value  and  under,  in  his  county  court,  of  which 
more  in  it's  proper  place  :  and  he  has  alfo  judicial  power  in  divers 
other  civil  cafes0.  He  is  likewife  to  decide  the  elections  of  knights 
of  the  mire,  (fubjec~l  to  the  control  of  the  houfe  of  commons)  of 
coroners,  and  of  verderors ;  to  judge  of  the  qualification  of  voters, 
and  to  return  fuch  as  he  mall  determine  to  be  duly  elected. 

A  s  the  keeper  of  the  king's  peace,  both  by  common  law  and 
fpecial  commiffion,  he  is  the  firft  man  in  the  county,  and  fupe- 
rior in  rank  to  any  nobleman  therein,  during  his  office p.  He  may 
apprehend,  and  commit  to  prifon,  all  perfons  who  break  the 
peace,  or  attempt  to  break  it :  and  may  bind  any  one  in  a  recog- 
nizance to  keep  the  king's  peace.  He  may,  and  is  bound  ex  officio 
to,  purfue  and  take  all  traitors,  murderers,  felons,  and  other  mif- 
doers,  and  commit  them  to  gaol  for  fafe  cuflody.  He  is  alfo  to 
defend  his  county  againft  any  of  the  king's  enemies  when  they 
come  into  the  land :  and  for  this  purpofe,  as  well  as  for  keeping 
the  peace  and  purfuing  felons,  he  may  command  all  the  people 
of  his  county  to  attend  him ;  which  is  called  the  poffe  comitatus, 
or  power  of  the  county  q :  which  fummons  every  perfon  above 
fifteen  years  old,  and  under  the  degree  of  a  peer,  is  bound  to  at- 


Dalt.  0.4.  1  Dak.  0.95. 

i  Roll.  Rep.  237. 


tend 


344  The    RIGHTS  BOOK!. 

tend  upon  warning",  under  pain  of  fine  and  imprifonment8.  But 
though  the  fheriff  is  thus  the  principal  confervator  of  the  peace 
in  his  county,  yet,  by  the  exprefs  directions  of  the  great  charter1, 
he,  together  with  the  conftable,  coroner,  and  certain  other  offi- 
cers of  the  king,  are  forbidden  to  hold  any  pleas  of  the  crown, 
or,  in  other  words,  to  try  any  criminal  offence.  For  it  would  be 
highly  unbecoming,  that  the  executioners  of  juftice  fhould  be  alfo 
the  judges  -,  fhould  impofe,  as  well  as  levy,  fines  and  amercements; 
fhould  one  day  condemn  a  man  to  death,  and  perfonally  execute 
him  the  next.  Neither  may  he  act  as  an  ordinary  juftice  of  the 
peace  during  the  time  of  his  office u  :  for  this  would  be  equally 
inconfiftent  -,  he  being  in  many  refpects  the  fervant  of  the  juf- 
tices. 

IN  his  minifterial  capacity  the  fheriff  is  bound  to  execute  all 
procefs  iffuing  from  the  king's  courts  of  juftice.  In  the  com- 
mencement of  civil  caules,  he  is  to  ferve  the  writ,  to  arreft,  and 
to  take  bail ;  when  the  caufe  comes  to  trial,  he  muft  fummon 
and  return  the  juryj  when  it  is  determined,  he  muft  fee  the 
judgment  of  the  court  carried  into  execution.  In  criminal  mat- 
ters, he  alfo  arrefts  and  imprifons,  he  returns  the  jury,  he  has 
the  cuftody  of  the  delinquent,  and  he  executes  the  fentence  of 
the  court,  though  it  extend  to  death  itfelf. 

A  s  the  king's  bailiff,  it  is  his  bufmefs  to  preferve  the  rights 
of  the  king  within  his  bailiwick ;  for  fo  his  county  is  frequently 
called  in  the  writs  :  a  word  introduced  by  the  princes  of  the 
Norman  line ;  in  imitation  of  the  French,  whofe  territory  is  di- 
vided into  bailiwicks,  as  that  of  England  into  counties  w.  He 
muft  feife  to  the  king's  ufe  all  lands  devolved  to  the  crown  by 
attainder  or  efcheat ;  muft  levy  all  fines  and  forfeitures ;  muft 
feife  and  keep  all  waifs,  wrecks,  eftrays,  and  the  like,  unlefs 
they  be  granted  to  fome  fubject ;  and  muft  alfo  collect  the  king's 

'  Lamb.  Eiren.  315.  "  Stat.  I  Mar.  ft.  2.  c.8. 

•  Stat.  2  Hen.V.  c.  8.  w  Fortefc.  de  L,  L.  c.  24. 

'  cap.  17. 

rents 


Ch.  9.  of.  PERSONS.  345 

rents  within  his  bailiwick,  if  commanded  by  procefs  from  the 
exchequer x. 

T  o  execute  thefe  various  offices,  the  ftieriff  has  under  him 
many  inferior  officers ;  an  under-meriff,  bailiffs,  and  gaolers  •, 
who  mufl  neither  buy,  fell,  nor  farm  their  offices,  on  forfeiture 
of  500 /.y 

THE  under-fherifF  ufually  performs  all  the  duties  of  the  office; 
a  very  few  only  excepted,  where  the  perfonal  prefence  of  the 
high-meriff  is  neceffary.  But  no  under-meriff  mail  abide  in  his 
office  above  one  year z ;  and  if  he  does,  by  ftatute  23  Hen. VI, 
c.  8.  he  forfeits  200  /.  a  very  large  penalty  in  thofe  early  days. 
And  no  under-fheriff  or  fheriff's  officer  mall  practice  as  an  attor- 
ney, during  the  time  he  continues  in  fuch  office 3:  for  this  would 
be  a  great  inlet  to  partiality  and  oppreffion.  But  thefe  falutary 
regulations  are  fhamefully  evaded,  by  practicing  in  the  names  of 
other  attorneys,  and  putting  in  mam  deputies  by  way  of  nominal 
under-flieriffs :  by  reafon  of  which,  fays  Dalton  b,  the  under- 
meriffs  and  bailiffs  do  grow  fo  cunning  in  their  feveral  places, 
that  they  are  able  to  deceive,  and  it  may  well  be  feared  that 
many  of  them  do  deceive,  both  the  king,  the  high-meriff,  and 
the  county. 

BAILIFFS,  or  meriff's  officers,  are  either  bailiffs  of  hun- 
dreds, or  fpecial  bailiffs.  Bailiffs  of  hundreds  are  officers  appoint- 
ed over  thofe  refpective  diftricts  by  the  fheriffs,  to  collect  fines 
therein  ;  to  fummon  juries  ;  to  attend  the  judges  and  juftices  at 
the  affifes,  and  quarter  feffions  ;  and  alfo  to  execute  writs  and 
procefs  in  the  feveral  hundreds.  But,  as  thefe  are  generally  plain 
men,  and  not  thoroughly  fkilful  in  this  latter  part  of  their  office, 
that  of  ferving  writs,  and  making  arrefts  and  executions,  it  is 
now  ufual  to  join  fpecial  bailiffs  with  them ;  who  are  generally 

x  Dalt.  c.  9.  »  Stat.  i  Hen.V.  c.  4. 

y  Stat.  3  Geo.  I.  c.  15.  &  of  flieriffs,  c.  115. 

z  Stat.  4zEd\v.  III.  e.g. 

U  u  mean 


346  The    RIGHTS  BOOK  I. 

mean  perfons  employed  by  the  meriffs  on  account  only  of  their 
adroitnefs  and  dexterity  in  hunting  and  feifing  their  prey.  The 
fheriff  being  anfwerable  for  the  mifdemefnors  of  thefe  bailiffs, 
they  are  therefore  ufually  bound  in  a  bond  for  the  due  execution 
of  their  office,  and  thence  are  called  bound-bailiffs ;  which  the 
common  people  have  corrupted  into  a  much  more  homely  ap- 
pellation. 

GAOLERS  are  alfo  the  fervants  of  the  fheriff,  and  he  rnuft 
be  refponfible  for  their  conduct.  Their  bufmefs  is  to  keep  fafely 
all  fuch  perfons  as  are  committed  to  them  by  lawful  warrant:  andr 
if  they  fuffer  any  fuch  to  efcape,  the  fheriff  fhall  anfwer  it  to 
the  king,  if  it  be  a  criminal  matter ;  or,  in  a  civil  cafe,  to  the 
party  injured0.  And  to  this  end  the  fheriff  muftd  have  lands 
fufficient  within  the  county  to  anfwer  the  king  and  his  people. 
The  abufes  of  gaolers  and  fheriff 's  officers  toward  the  unfortunate 
perfons  in  their  cuftody  are  well  reftraLned  and  guarded  againfl 
by  ftatute  32  Geo.  II.  c.  28. 

TH  E  vaft  expenfe,  which  cuftom  had  introduced  in  ferving 
the  office  of  high-lheriff,  was  grown  fuch  a  burthen  to  the  fub- 
jecl,  that  it  was  enacted,  by  ftatute  13  &  14  Car.  II.  c.  21.  that 
no  fheriff  fhould  keep  any  table  at  the  afiifes,  except  for  his  own 
family,  or  give  any  prefents  to  the  judges  or  their  fervants,  or 
have  more  than  forty  men  in  livery ;  yet,  for  the  fake  of  fafety 
and  decency,  he  may  not  have  lefs  than  twenty  men  in  England 
and  twelve  in  Wales ;  upon  forfeiture,  in  any  of  thefe  cafes,  of 
200  /. 

II.  TH  E  coroner's  is  alfo  a  very  antient  office  at  the  common 
law.  He  is  called  coroner,  coronator,  becauie  he  hath  principally 
to  do  with  pleas  of  the  crown,  or  fuch  wherein  the  king  is  more 
immediately  concerned0.  And  in  this  light  the  lord  chief  juflice 

c  Dalt.  c.  1 1 8.    4  Rep.  34.  14  Car.  II.  c.  21.  §  7. 

11  Siat.  9  Edw.  II.  ft.  2.    zEdw.III,  C-4.         «2lnft.3i.    4lr,ft.  271. 
4Edw.  ill.  0.9.    5  Edw.  111.  0.4.     13  & 

of 


Ch.  9.  <?/*    PERSONS.  347 

of  the  king's  bench  is  the  principal  coroner  in  the  kingdom,  and 
may  (if  he  pleafes)  exercife  the  jurifdidtion  of  a  coroner  in  any 
part  of  the  realm  f.  But  there  are  alfo  particular  coroners  for 
every  county  of  England ;  ufually  four,  but  fometimes  fix,  and 
fome times  fewer5.  This  officer11  is  of  equal  antiquity  with  the 
fheriff;  and  was  ordained  together  with  him  to  keep  the  peace, 
when  the  earls  gave  up  the  wardfhip  of  the  county. 

H  E  is  ftill  chofen  by  all  the  freeholders  in  the  county  court, 
as  by  the  policy  of  our  antient  laws  the  fheriffs,  and  confervators 
of  the  peace,  and  all  other  officers  were,  who  were  concerned  in 
matters  that  affected  the  liberty  of  the  people1;  and  as  verderors 
of  the  forefts  ftill  are,  whofe  bufinefs  it  is  to  ftand  between  the 
prerogative  and  the  fubject  in  the  execution  of  the  foreft  laws. 
For  this  purpofe  there  is  a  writ  at  common  law  de  coronatore  eli- 
gendo  k .-  in  which  it  is  expreffly  commanded  the  fheriff,  "  quod 
"  talem  eligifadat,  qui  melius  et  fciat,  et  velit,  et  po/Jii,  officio  illi 
"  intendere"  And,  in  order  to  effect  this  the  more  furely,  it  was 
enacted  by  the  ftatute1  of  Weflm.  i.  that  none  but  lawful  and 
difcreet  knights  ihould  be  chofen  :  and  there  was  an  inftance  in 
the  jEdw.III.  of  a  man  being  removed  from  this  office,  becaufe 
he  was  only  a  merchant"1.  But  it  feems  it  is  now  fufficient  if  a 
man  hath  lands  enough  to  be  made  a  knight,  whether  he  be 
really  knighted  or  not " :  for  the  coroner  ought  to  have  eftate 
fufficient  to  maintain  the  dignity  of  his  office,  and  anfwer  any 
fines  that  may  be  fet  upon  him  for  his  mifbehaviour  ° -,  and  if  he 
hath  not  enough  to  anfwer,  his  fine  mall  be  levied  on  the  county, 
as  a  punimment  for  electing  an  inefficient  officer p.  Now  indeed, 
through  the  culpable  neglect  of  gentlemen  of  property,  this  office 
has  been  fuffered  to  fall  into  difrepute,  and  get  into  low  and  in- 
digent hands :  fo  that,  although  formerly  no  coroners  would  con- 

f  4  Rep.  57.  i  3Edvv.I.  c.  10. 

«  F.  N.  B.  163.  m  zinft.  3Z. 

h  Mirror,  c.  i.  §.  3.  n  p.  N.  B.  163,  164. 

;  zinft.  558.  »  Ibid. 

k  F.  N.  6.163.  P  Mirr.  c.  I.  §.3.    zlnfl.  175. 

U  u  2  defcend 


348  iToe    RIGHTS  BOOK!. 

defcend  to  be  paid  for  ferving  their  country,  and  they  were  by  the 
aforefaid  ftatute  of  Weftm.  i .  expreflly  forbidden  to  take  a  re- 
ward, under  pain  of  great  forfeiture  to  the  king;  yet  for  many 
years  paft  they  have  only  delired  to  be  chofen  for  the  fake  of  their 
perquisites;  being  allowed  fees  for  their  attendance  by  the  ftatute 
3  Hen. VII.  c.  i.  which  fir  Edward  Coke  complains  of  heavily9; 
though  fince  his  time  thofe  fees  have  been  much  enlarged r. 

TH  E  coroner  is  chofen  for  life  :  but  may  be  removed,  either 
by  being  made  meriff,  or  chofen  verderor,  which  are  offices  in- 
compatible with  the  other ;  or  by  the  king's  writ  de  coronatore 
exonerando,  for  a  caufe  to  be  therein  affigned,  as  that  he  is  en- 
gaged in  other  bufinefs,  is  incapacitated  by  years  or  ficknefs,  hath 
not  a  fufficient  eftate  in  the  county,  or  lives  in  an  inconvenient 
part  of  its.  And  by  the  ftatute  25  Geo.  II.  c.  29.  extortion, 
negledt,  or  miihehaviour,  are  alfo  made  caufes  pf  removal. 

THE  office  and  power  of  a  coroner  are  alfo,  like  thofe  of  a 
fheriff,  either  judicial  or  minifterial ;  but  principally  judicial. 
This  is  in  great  meafure  afcertained  by  ftatute  4  Edw.  I.  de  offido 
coronatoris ;  and  confifts,  firft,  in  enquiring,  when  any  perfon  is 
flain,  or  dies  fuddenly,  or  in  prifon,  concerning  the  manner  of 
his  death.  And  this  muft  be  "fitper  vifum  corporis1 ;"  for,  if  the 
body  be  not  found,  the  coroner  cannot  fit u.  He  muft  alfo  fit  at 
the  very  place  where  the  death  happened  ;  and  his  enquiry  is 
made  by  a  jury  from  four,  five,  or  fix  of  the  neighbouring 
towns,  over  whom  he  is  to  prefide.  If  any  be  found  guilty  by 
this  inqueft  of  murder,  he  is  to  commit  to  prifon  for  farther 
trial,  and  is  alfo  to  enquire  concerning  their  lands,  goods  and 
chattels,  which  are  forfeited  thereby  :  but,  whether  it  be  mur- 

i  2lnft.2lo.  hood,  for  the  (laughter  of  a  mnn  therein, 

1   Stat.  25Geo.II.c.29.  "  de  corfore  delifli  conjiare  ofortebat ;  i.e.  non 

*  F.  N.  B.  163,  164.  "  tain  fuij/e  aliquem   in  tcrntorio  ijlo  miftuum 

1  4  Inft.  271.  "  in<ventum,  qiiam--vulne  rat  urn  et  caefum.  Potejt 

u  Thus,   in  the  Gothic  conftitution,  be-  "  enim  homo  etiam  ex  alia  caitfa  fubtto  uteri." 

fore  any  fine  was  payable  by  the  neighbour-  Stiernhook  de  jure  Gothor.  I.  3.  c.  4. 

der 


Ch.  9.  ^/"PERSONS.  349 

der  or  not,  he  mufl  enquire  whether  any  deodand  has  accrued  to 
the  king,  or  the  lord  of  the  franchife,  by  this  death  :  and  mull 
certify  the  whole  of  this  inquifition  to  the  court  of  king's  bench, 
or  the  next  afllfes.  Another  branch  of  his  office  is  to  enquire 
concerning  {hipwrecks ;  and  certify  whether  wreck  or  not,  and 
who  is  in  poflefllon  of  the  goods.  Concerning  treafure-trove,  he 
is  alfo  to  enquire  who  were  the  finders,  and  where  it  is,  and 
whether  any  one  be  fufpedted  of  having  found  and  concealed  a 
treasure;  "and  that  may  be  well  perceived  (faith  the  old  flatute 
"of  Edw.  I.)  where  one  liveth  riotoufly,  hunting  taverns,  and 
"  hath  done  fo  of  long  time  :"  whereupon  he  might  be  attached, 
and  held  to  bail,  upon  this  fufpicion  only. 

THE  miniflerial  office  of  the  coroner  is  only  as  the  fheriff's 
fubftitute.  For  when  jufl  exception  can  be  taken  to  the  fherifF, 
for  fufpicion  of  partiality,  (as  that  he  is  interefled  in  the  fuit,  or 
of  kindred  to  either  plaintiff  or  defendant)  the  procefs  mufl  then 
be  awarded  to  the  coroner,  inflead  of  the  fheriff,  for  execution 
of  the  king's  writs v. 

III.  TH  E  next  fpecies  of  fubordinate  magiflrates,  whom  I  am 
to  confider,  are  juflices  of  the  peace  ;  the  principal  of  whom  is 
the  cuftos  rotulorum,  or  keeper  of  the  records  of  the  county.  The 
common  law  hath  ever  had  a  fpecial  care  and  regard  for  the  con- 
fervation  of  the  peace ;  for  peace  is  the  very  end  and  foundation 
of  civil  fociety.  And  therefore,  before  the  prefent  conflitution  of 
juftices  was  invented,  there  were  peculiar  officers  appointed  by 
the  common  law  for  the  maintenance  of  the  public  peace.  Of 
thefe  fome  had,  and  flill  have,  this  power  annexed  to  other  of- 
fices which  they  hold ;  others  had  it  merely  by  itfelf,  and  were 
thence  named  cujlodes  or  confervatores  pacts.  Thofe  that  were  fo 
virtute  qfflcii  flill  continue  -,  but  the  latter  fort  are  fuperleded  by 
the  modern  juflices. 

271. 

THE 


3 5 o  1%"!    RIGHTS  BOOK!. 

THE  king's  majelty"'  is,  by  his  office  and  dignity  royal,  the 
principal  confervator  of  the  peace  within  all  his  dominions  j  and 
may  give  authority  to  any  other  to  fee  the  peace  kept,  and  to 
punilli  fuch  as  break  it:  hence  it  is  ufually  called  the  king's  peace. 
The  lord  chancellor  or  keeper,  the  lord  treafurer,  the  lord  high 
fteward  of  England,  the  lord  marefchal,  and  lord  high  conflable 
of  England  (when  any  fuch  officers  are  in  being)  and  all  the 
juftices  of  the  court  of  king's  bench  (by  virtue  of  their  offices) 
-and  the  mailer  of  the  rolls  ( by  prefcription )  are  general  confer- 
vators  of  the  peace  throughout  the  whole  kingdom,  and  may 
commit  all  breakers  of  it,  or  bind  them  in  recognizances  to  keep 
it x :  the  other  judges  are  only  fo  in  their  own  courts.  The  co- 
roner is  alfo  a  confervator  of  the  peace  within  his  own  county  y; 
as  is  alfo  the  fherirFz;  and  both  of  them  may  take  a  recognizance 
or  fecurity  for  the  peace.  Conftables,  tythingmen,  and  the  like, 
are  alfo  confervators  of  the  peace  within  their  own  jurifdi&ionsi 
and  may  apprehend  all  breakers  of  the  peace,  and  commit  them 
till  they  find  fureties  for  their  keeping  it a. 

THOSE  that  were,  without  any  office,  fimply  and  merely 
confervators  of  the  peace,  either  claimed  that  power  by  prefcrip- 
tion bi  or  were  bound  to  exercife  it  by  the  tenure  of  their  lands'; 
or,  laftly,  were  chofen  by  the  freeholders  in  full  county  court 
before  the  fherirF;  the  writ  for  their  eledlion  directing  them  to 
be  chofen  "  de  probiorlbus  et  potentioribus  comitatus  fui  in  cujlodes 
"  facisd."  But  when  queen  Ifabel,  the  wife  of  Edward  II,  had 
contrived  to  depofe  her  hufband  by  a  forced  refignation  of  the 
crown,  and  had  fet  up  his  fon  Edward  III  in  his  place ;  this, 
being  a  thing  then  without  example  in  England,  it  was  feared 
would  much  alarm  the  people ;  efpecially  as  the  old  king  was 
living,  though  hurried  about  from  caflle  to  cafHe  j  till  at  laft  he 

*  Lambard.  Eirenarch.  iz,  a  Lamb.  14. 

*  Lamb.  12.  b  Ibid,  15. 
7  Britton.  3.  c  Ibid.  17. 

*  F.  N.  B.  81.  i  Ibid.  16. 

met 


Ch.  9.  of    PERSONS.  351 

met  with  an  untimely  death.  To  prevent  therefore  any  rifings, 
or  other  difturbance  of  the  peace,  the  new  king  fent  writs  to  all 
the  iherifFs  in  England,  the  form  of  which  is  preferved  by  Tho- 
mas Walfingham  %  giving  a  plaulible  account  of  the  manner  of 
his  obtaining  the  crown ;  to  wit,  that  it  was  done  ipjius  patris 
beneplacito:  and  withal  commanding  each  fheriff  that  the  peace 
be  kept  throughout  his  bailiwick,  on  pain  and  peril  of  difmhe- 
ritance  and  lols  of  life  and  limb.  And  in  a  few  weeks  after  the 
date  of  thefe  writs,  it  was  ordained  in  parliament f,  that,  for  the 
better  maintaining  and  keeping  of  the  peace  in  every  county, 
good  men  and  lawful,  which  were  no  maintainers  of  evil,  or 
barretors  in  the  country,  mould  be  qfjigned  to  keep  the  peace. 
And  in  this  manner,  and  upon  this  occafion,  was  the  election 
of  the  confervators  of  the  peace  taken  from  the  people,  and 
given  to  the  king6;  this  alignment  being  conftrued  to  be  by  the 
king's  commiiHon  h.  But  ftill  they  were  called  only  confervators, 
wardens,  or  keepers  of  the  peace,  till  the  ftatute  34  Edw.  III.  c.r. 
gave  them  the  power  of  trying  felonies  -,  and  then  they  acquired 
the  more  honorable  appellation  of  juftices  J. 

THESE  juftices  are  appointed  by  the  king's  fpecial  commiffion 
under  the  great  feal,  the  form  of  which  was  fettled  by  all  the 
judges,  A.  D.\  590'.  This  appoints  them  all  k,  jointly  and  fe- 
verally,  to  keep  the  peace,  and  any  two  or  more  of  them  to  en- 
quire of  and  determine  felonies,  and  other  mifdemefnors  :  in 
which  number  fome  particular  juftices,  or  one  of  them,  are  di- 
rected to  be  always  included,  and  no  bufinefs  to  be  done  without 
their  prefence  ;  the  words  of  the  commifllon  running  thus,  "  quo- 
"  rum  aliquem  veftrum,  A.  B.  C.  D.  &c.  unum  eJJ'e  -vo/umus  ;" 
whence  the  perfons  fo  named  are  ufually  called  juftices  of  the 
quorum.  And  formerly  it  was  cuftornary  to  appoint  only  a  felect 

«  Hid.  A.  D.  1327,  i  Lamb.  23. 

f  Stat.  i  Edw.  III.  c   16.  '  Hut.  43. 

f  Lamb.  20.  k  See  the  form  itfelf,  Lamb.  35.    Burn. 

h  Stut.  4  Edw.  III.  c.  2.  18  Edw.  III.     tit.  juftices,  §.  i. 
fl.  2.  c.  2. 

number 


3 5 2  The    RIGHTS  BOOK!. 

number  of  juftices,  eminent  for  their  fkill  and  difcretion,  to  be  of 
the  quorum ;  but  now  the  practice  is  to  advance  almoft  all  of  them 
to  that  dignity,  naming  them  all  over  again  in  the  quorum  claufe, 
except  perhaps  only  forne  one  inconfiderable  perfon  for  the  fake 
of  propriety  :  and  no  exception  is  now  allowable,  for  not  ex- 
preffing  in  the  form  of  warrants,  &c,  that  the  juftice  who  iffued 
them  is  of  the  quorum  l. 

Touc  KING  the  number  and  qualifications  of  thefe  juftices , 
it  was  ordained  by  ftatute  18  Edw.  III.  c.  2.  that  two,  or  three, 
of  the  beft  reputation  in  each  county  mall  be  afligned  to  be  keep- 
ers of  the  peace.  But  thefe  being  found  rather  too  few  for  that 
purpofe,  it  was  provided  by  ftatute  34  Edw.  III.  c,  i.  that  one 
lord,  and  three,  or  four,  of  the  moft  worthy  men  in  the  county, 
with  fome  learned  in  the  law,  mall  be  made  juftices  in  every 
county.  But  afterwards  the  number  of  juftices,  through  the  am- 
bition of  private  perfons,  became  fo  large,  that  it  was  thought 
neceflary  by  ftatute  laRic.  II.  c.  10.  and  i4Ric.  II.  c.  n.  to 
reftrain  them  at  firft  to  fix,  and  afterwards  to  eight  only.  But 
this  rule  is  now  difregarded,  and  the  caufe  feems  to  be  (as  Lam- 
bard  obferved  long  ago  m )  that  the  growing  number  of  ftatute 
laws,  committed  from  time  to  time  to  the  charge  of  juftices  of 
the  peace,  have  occafioned  alfo  (and  very  reafonably)  their  en- 
creafe  to  a  larger  number.  And,  as  to  their  qualifications,  the 
ftatutes  juft  cited  direcl:  them  to  be  of  the  beft  reputation,  and 
moft  worthy  men  in  the  county  :  and  the  ftatute  13  Ric.  II.  c.j. 
orders  them  to  be  of  the  moft  fufficient  knights,  efquires,  and 
gentlemen  of  the  law.  Alfo  by  ftatute  2  Hen.V.  ft/  i.  c.  4.  and 
ft.  2.  c.  i.  they  muft  be  refident  in  their  feveral  counties.  And 
becaufe,  contrary  to  thefe  ftatutes,  men  of  fmall  fubftance  had 
crept  into  the  commiflion,  whofe  poverty  made  them  both  covet- 
ous and  contemptible,  it  was  enacted  by  ftatute  1 8  Hen. VI.  c.i  i. 
that  no  juftice  mould  be  put  in  commimon,  if  he  had  not  lands 
to  the  value  of  20 /.  per  annum.  And,  the  rate  of  money  being 
greatly  altered  fince  that  time,  it  is  now  enadted  by  ftatute 

1  Stat.  z6Geo.II.  c.  27.  m  Lamb.  34. 

5  Geo.  II. 


Ch.  9.  of  PERSONS.  353 

5Geo.  II.  c.  1 1.  and  every  juflice,  except  as  is  therein  excepted, 
mall  have  ioo/.  per  annum  clear  of  all  deductions  ;  and,  if  he  acts 
without  fuch  qualification,  he  {hall  forfeit  ioo/.  This  qualifica- 
tion "  is  almoft  an  equivalent  to  the  20  /.  per  annum  required  in 
Henry  the  fixth's  time  :  and  of  this0  the  juftice  muft  now  make 
oath.  Alfo  it  is  provided  by  the  aft  5  Geo.  II.  that  no  praclifing 
attorney,  folicitor,  or  prodlor,  mall  be  capable  of  ailing  as  a  juf- 
tice  of  the  peace. 

> 

As  the  office  of  tftefe  juftices  is  conferred  by  the  king,  fo  it 
fubfifts  only  during  his  pleafure  ;  and  is  determinate,  i .  By  the 
demife  of  the  crown  j  that  is,  in  fix  months  after  p.  2.  By  ex- 
prefs  writ  under  the  great  feal q,  difcharging  any  particular  perfon 
from  being  any  longer  juftice.  3.  By  fuperfeding  the  commifTion 
by  writ  of  fupe rfedeas,  which  fufpends  the  power  of  all  the  juf- 
tices, but  does  not  totally  deftroy  it ;  feeing  it  may  be  revived 
again  by  another  writ,  called  a  procedendo.  4.  By  a  new  com- 
miffion, which  virtually,  though  filently,  difcharges  all  the  for- 
mer juftices  that  are  not  included  therein  ;  for  two  commiffions 
cannot  fubfift  at  once.  5.  By  acceffion  of  the  office  of  merifF  or 
coroner'.  Formerly  it  was  thought,  that  if  a  man  was  named  in 
any  commiffion  of  the  peace,  and  had  afterwards  a  new  dignity 
conferred  upon  him,  that  this  determined  his  office ;  he  no  lon- 
ger anfwering  the  defcription  of  the  commifTion  :  but  now5  it  is 
provided,  that  notwithftanding  a  new  title  of  dignity,  the  juftice 
on  whom  it  is  conferred  ftiall  ftill  continue  a  juftice. 

TH  E  power,  office,  and  duty  of  a  juftice  of  the  peace  depend 
on  his  commiffion,  and  on  the  feveral  ftatutes,  which  have  created 
objects  of  his  jurifdidlion.  His  commiffion,  firft,  empowers  him 
fingly  to  conferve  the  peace  ;  and  thereby  gives  him  all  the  power 
of  the  antient  confervators  at  the  common  law,  in  fupprefTing 

n  See  biftiop  Fleetwood's  calculations  in  *  Lamb.  67. 

his  chronicon  pretiofum.  *  Stat.  I  Mar.  ft.  I .  c.  8. 

0  Stat.  1 8  Geo.  II.  c.  20.  *  Stat.  i  Edw. VI.  c.  7. 
*  Stat.  i  Ann.  c.  8. 

W  w  riots 


354  72*    RIGHTS  BOOK  I. 

riots  and  affrays,  in  taking  fecurities  for  the  peace,  and  in  ap- 
prehending and  committing  felons  and  other  inferior  criminals, 
It  allb  empowers  any  two  or  more  of  them  to  hear  and  determine 
all  felonies  and  other  offences;  which  is  the  ground  of  their  ju- 
rifdiction  at  feffions,  of  which  more  will  be  faid  in  it's  proper 
place.  And  as  to  the  powers  given  to  one,  two,  or  more  juflices 
by  the  feveral  ftatutes,  which  from  time  to  time  have  heaped  upon 
them  fuch  an  infinite  variety  of  bufmefs,  that  few  care  to  under- 
take, and  fewer  understand,  the  office  ;  they  are  fuch  and  of  fo 
great  importance  to  the  public,  that  the  country  is  greatly  obli- 
ged to  any  worthy  magiftrate,  that  without  finifter  views  of  his 
own  will  engage  in  this  troublefome  fervice.  And  therefore,  if  a 
well  meaning  juftice  makes  any  undefigned  Hip  in  his  practice, 
great  lenity  and  indulgence  are  Ihewn  to  him  in  the  courts  of  law  ;. 
and  there  are  many  ftatutes  made  to  protect  him  in  the  upright 
difcharge  of  his  office  ' :  which,  among  other  privileges,  prohibit 
fuch  juftices  from  being  fued  for  any  overfights  without  notice 
beforehand  ;  and  flop  all  fuits  begun,  on  tender  made  of  fufficient 
amends.  But,  on  the  other  hand,  any  malicious  or  tyrannical 
abufe  of  their  office  is  fure  to  be  feverely  puniihed ;  and  all  per- 
fons  who  recover  a  verdict  againft  a  juftice,  for  any  wilful  or  ma- 
licious injury,  are  entitled  to  double  coils. 

I  T  is  impoffible  upon  our  prefent  plan  to  enter  minutely  into 
the  particulars  of  the  accumulated  authority,  thus  committed  to 
the  charge  of  thefe  magistrates.  I  mull  therefore  refer  myfelf  at 
prefent  to  fuch  fubfequent  parts  of  thefe  commentaries,  as  will 
in  their  turns  comprize  almofr.  every  object  of  the  juftices'  jurif- 
diction  :  and  in  the  mean  time  recommend  to  the  ftudent  the 
perufal  of  Mr  Lambard's  eirenarcha,  and  Dr  Burn's  jujtice  of  the 
peace  ;  wherein  he  will  find  every  thing  relative  to  this  fubject, 
both  in  antient  and  modern  practice,  collected  with  great  care  and 
accuracy,  and  difpofed  in  a  moft  clear  and  judicious  method. 

1  Stat.  jjac.  I.  c.  5.    21  Jac.  I.  c.  12.    24060.11.0.44. 

I    S  HALL 


Ch.  9.  ^PERSONS.  355 

I  SHALL  next  confider  fome  officers  of  lower  rank  than 
thofe  which  have  gone  before,  and  of  more  confined  jurifdidtion; 
but  ftill  fuch  as  are  univerfally  in  ufe  through  every  part  of  the 
kingdom. 

IV.  FOURTHLY,  then,  of  the  conftable.  The  word  conftable 
is  frequently  faid  to  be  derived  from  the  Saxon,  koning-ftaple, 
and  to  fignify  the  fupport  of  the  king.  But,  as  we  borrowed  the 
name  as  well  as  the  office  of  conftable  from  the  French,  I  am 
rather  inclined  to  deduce  it,  with  fir  Henry  Spelman  and  Dr  Cowel, 
from  that  language,  wherein  it  is  plainly  derived  from  the  Latin 
comes  jiabuli,  an  officer  well  known  in  the  empire ;  fo  called 
becaufe,  like  the  great  conftable  of  France,  as  well  as  the  lord 
high  conftable  of  England,  he  was  to  regulate  all  matters  of 
chivalry,  tilts,  turnaments,  and  feats  of  arms,  which  were  per- 
formed on  horfeback.  This  great  office  of  lord  high  conftable 
hath  been  difufed  in  England,  except  only  upon  great  and  folemn 
occasions,  as  the  king's  coronation  and  the  like,  ever  fince  the 
attainder  of  Stafford^  duke  of  Buckingham  under  king  Henry VIII; 
as  in  France  it  was  fupprefled  about  a  century  after  by  an  edict  of 
Louis  XIII":  but  from  his  office,  fays.Lambard w,  this  lower 
conftablefhip  was  at  firft  drawn  and  fetched,  and  is  as  it  were  a 
very  finger  of  that  hand.  For  the  ftatute  of  Winchefterx,  which 
firft  appoints  them,  directs  that,  for  the  better  keeping  of  the 
peace,  two  conftables  in  every  hundred  and  franchife  lhall  infpect 
all  matters  relating  to  arms  and  armour. 

CONSTABLES  are  of  two  forts,  high  conftables,  and  petty 
conftables.  The  former  were  firft  ordained  by  the  ftatute  of 
Winchefter,  as  before-mentioned  -,  and  are  appointed  at  the  court 
leets  of  the  franchife  or  hundred  over  which  they  prefide,  or,  in 
default  of  that,  by  the  juftices  at  their  quarter  feffions ;  and  are 
removeable  by  the  fame  authority  that  appoints  themy.  The  petty 

"  Philips's  life  of  Pole.ii.  in.  "-ijEdw.  I.  c.  6. 

v'  of  conilabkf,  5.  i  Salk.  150. 

W  w  2  conftables 


RIGHTS  BOOK  I. 

conftables  are  inferior  officers  in  every  town  and  pariih,  fubordi- 
nate  to  the  high  conftable  of  the  hundred,  firft  inftituted  about 
the  reign  of  Edward  III  *.  Thefe  petty  conftables  have  two  offi- 
ces united  in  them  ;  the  one  antient,  the  other  modern.  Their 
antient  office  is  that  of  headborough,  tithing-man,  or  borfholder ; 
of  whom  we  formerly  fpokea,  and  who  are  as  antient  as  the  time 
of  king  Alfred :  their  more  modern  office  is  that  of  conftable 
merely ;  which  was  appointed  (as  was  obferved)  fo  lately  as  the 
reign  of  Edward  III,  in  order  to  affift  the  high  conftable  b.  And 
in  general  the  antient  headboroughs,  tithing-men,  and  borfholders, 
were  made  ufe  of  to  ferve  as  petty  conftables ;  though  not  fo  ge- 
nerally, but  that  in  many  places  they  ftill  continue  diftinct  officers 
from  the  conftable.  They  are  all  chofen  by  the  jury  at  the  court 
leet ;  or,  if  no  court  leet  be  held>  are  appointed  by  two  juftices 
of  the  peace c. 

TH  E  general  duty  of  all  conilables,  both  high  and  petty,  as 
well  as  of  the  other  officers,  is  to  keep  the  king's  peace  in  their 
feveral  diftridts ;  and  to  that  purpofe  they  are  armed  with  very 
large  powers,  of  arrefting,  and  imprifoning,  of  breaking  open 
houfes,  and  the  like  :  of  the  extent  of  which  powers,  confider- 
ing  what  manner  of  men  are  for  the  moft  part  put  upon  thefe 
offices,  it  is  perhaps  very  well  that  they  are  generally  kept  in 
ignorance.  One  of  their  principal  duties,  arifing  from  the  fta- 
tute  of  Winchefter,  which  appoints  them,  is  to  keep  watch  and 
ward  in  their  refpeftive  jurifdiclions.  Ward,  guard,  or  cujlodia, 
is  chiefly  intended  of  the  day  time,  in  order  to  apprehend  rioters, 
and  robbers  on  the  highways  -,  the  manner  of  doing  which  is  left 
to  the  difcretion  of  the  juftices  of  the  peace  and  the  conflable  d, 
the  hundred  being  however  anfwerable  for  all  robberies  commit- 
ted therein,  by  day  light,  for  having  kept  negligent  guard.  Watch 
is  properly  applicable  to  the  night  only,  (being  called  among  our 
Teutonic  anceftors  ivacbt  or  ioaflaf]  and  it  begins  at  the  time 

z  Spelm.  Gloff.  148.  d  Dalt.  juft.  c.  104. 

1  pag.  1 14.  e  Exculias  et  exploration!!  quas  wnflasvocan:. 

k  Lamb.  9.  Capitular.  Hludev.  Pii.  cap.l.  4.D.Si<;. 

c  Stat.  14  &  15  Car.  jj.  c.  12.  when 


Ch.  9.  of    PERSONS.  357 

when  ward  ends,  and  ends  when  that  begins :  for,  by  the  ftatute 
of  Winchefter,  in  walled  towns  the  gates  fliall  be  clofed  from 
funfetting  to  funriling,  and  watch  fhall  be  kept  in  every  borough 
and  town,  efpeciallyin  the  iummer  feafon,  to  apprehend  all  rogues, 
vagabonds,  and  night-walkers,  and  make  them  give  an  account 
of  themfelves.  The  conftable  may  appoint  watchmen  at  his  dif- 
cretion,  regulated  by  the  cuftom  of  the  place ;  and  thefe,  being 
his  'deputies,  have  for  the  time  being  the  authority  of  their  prin- 
cipal. But,  with  regard  to  the  infinite  number  of  other  minute 
duties,  that  are  laid  upon  conftabies  by  a  diveriity  of  ftatutes,  I 
muft  again  refer  to  Mr  Lambard  and  Dr  Burn  j  in  whole  compi- 
lations may  be  alfo  feen,  what  powers  and  duties  belong  to  the 
conftable  or  tithing-man  indifferently,  and  what  to  the  conflable 
only  :  for  the  conftabie  may  do  whatever  the  tithing-man  may  ; 
but  it  does  not  hold  e  converfo ;  for  the  tithing-man  has  not  an. 
equal  power  with  the  conflable. 

V.  WE  are  next  to  confider  the  furveyors  of  the  highways. 
Every  parifh  is  bound  of  common  right  to  keep  the  high  roads, 
that  go  through  it,  in  good  and  fufficient  repair ;  unlefs  by  reafon 
of  the  tenure  of  lands,  or  otherwife,  this  care  is  configned  to 
fbme  particular  private  perfon.  From  this  burthen  no  man  was 
exempt  by  our  antient  laws,  whatever  other  immunities  he  might 
enjoy  :  this  being  part  of  the  trinoda  necej/itas,  to  which  every 
man's  eftate  was  fubjectj  viz.  expeditio  contra  hojlem,  arciurn 
con/lruSlio,  et  pontium  reparatio :  for,  though  the  reparation  of 
bridges  only  is  exprefTed,  yet  that  of  roads  alfo  muft  be  under- 
ftood ;  as  in  the  Roman  law,  ad  inJlruSliones  reparationefque  itine- 
rum  et  pontium,  nullum  genus  homrnum,  nullhijque  dignitatis  ac  lie— 
nerationis  mentis  t  ceffare  oportet (.  And  indeed  now,  for  the  mofl 
part,  the  care  of  the  roads  only  feems  to  be  left  to  parifhes  ;  that 
of  bridges  being  in  great  meafure  devolved  upon  the  county  at 
large,  by  ftatute  22  Hen.  VIII.  c.  5.  If  the  parifh  neglected  thefe 
repairs,  they  might  formerly,  as  they  may  ftill,  be  indicted  for 
fuch  their  neglect :  but  it  was  not  then  incumbent  on  any  parti- 

f  c.  ii.  74.  4. 

cular 


358  The    RIGHTS  BOOK!. 

cular  officer  to  call  the  parifh  together,  and  fet  them  upon  this 
work  j  for  which  reafon  by  the  ftatute  2  6c  3  Ph.  6c  M.  c.  8. 
furveyors  of  the  highways  were  ordered  to  be  chofen  in  every 
parifh  6. 

TH  E  s  E  furveyors  were  originally,  according  to  the  ftatute  of 
Philip  and  Mary,  to  be  appointed  by  the  conftable  and  church- 
wardens of  the  parilh  ;  but  now  h  they  are  constituted  by  two 
neighbouring  juftices,  out  of  fuch  fubftantial  inhabitants  as  have 
either  io/.  per  annum  of  their  own,  or  rent  30  /.  a  year,  or  are 
worth  in  perfonal  eftate  ioo/. 

TH  E  i  R  office  and  duty  confifts  in  putting  in  execution  a  va- 
riety of  ftatutes  for  the  repairs  of  the  highways ;  that  is,  of  ways 
leading  from  one  town  to  another  :  by  which  it  is  enacted, 
i .  That  they  may  remove  all  annoyances  in  the  highways,  or  give 
notice  to  the  owner  to  remove  them ;  who  is  liable  to  penalties 
on  non-compliance.  2.  They  are  to  call  together  all  the  inhabi- 
tants of  the  parifh,  fix  days  in  every  year,  to  labour  in  repairing 
the  highways  ;  all  perfons  keeping  draughts,  or  occupying  lands, 
being  obliged  to  fend  a  team  for  every  draught,  and  for  every  50  /. 
a  year,  which  they  keep  or  occupy;  and  all  other  perfons  to 
work  or  find  a  labourer.  The  work  muft  be  completed  before 
harveft ;  as  well  for  providing  a  good  road  for  carrying  in  the 
corn,  as  alfo  becaufe  all  hands  are  then  fuppofed  to  be  employed 
in  harveft  work.  And  every  cartway  muft  be  made  eight  feet 
wide  at  the  leaft ' ;  and  may  be  increafed  by  the  quarter  feffions 
to  the  breadth  of  four  and  twenty  feet.  3.  The  furveyors  may 

s  This  office,  Mr  Dahon  (juft.  cap.  50.)  way,  was  candidate  for  the  confulfhip  with 

fays,  exadly  anfwers  that  of  the  curatores  Julius  Caefar.    (Cic.  ad  Attic.  1.  \.  ep.  \.) 
vlarum  of  the  Romans :   but,  I  fliould  guefs          h  Stat.  3  W.  &  M.  c.  1 2. 
that  theirs  was  an  office  of  rather  more  dig-         '  This,  by  the  laws  of  the  twelve  tables 

nity  and  authority  than  ours,  not  only  from  at  Rome,  was  the  ftandard  for  roads  that 

comparing    the    method    of    making    and  were  ftraight  j    but  in  winding  ways,  the 

mending  the  Roman  wavs  with  thofe  of  our  breadth   was   dire&ed   to   be   fixteen   feet, 

country  parifhes;  but  alfo  becaufe  one  Ther-  Ff.  8.  3.  8. 
mus,  who  was  the  curator  of  the  Flaminian 

lay 


Ch.  9.  of   PERSONS.  359 

lay  out  their  own  money  in  purchafing  materials  for  repairs,  where 
there  is  not  fufficient  within  the  parhh,  and  fliall  be  reimburied 
by  a  rate,  to  be  allowed  at  a  fpecial  feffions.  4.  In  cafe  the  per- 
fonal  labour  of  the  parifh  be  not  fufficient,  the  furveyors,  with 
the  content  of  the  quarter  feUions,  may  levy  a  rate  (not  exceed- 
ing 6  d.  in  the  pound)  on  the  pariih,  in  aid  of  the  perfonal  duty  ; 
for  the  due  application  of  which  they  are  to  account  upon  oath.. 
As  for  turnpikes,  which  are  now  univerfally  introduced  in  aid  of 
fuch  rates,  and  the  law  relating  to  them,  theie  depend  entirely 
on  the  particular  powers  granted  in  the  feveral  road  acts,  and 
therefore  have  nothing  to  do  with  this  compendium  of  general  law. 

VI.  I  PROCEED  therefore,  laftly,  to  confider  the  overfeers 
of  the  poor;  their  original,  appointment,  and  duty. 

THE  poor  of  England,  till  the  time  of  Henry  VIII,  fubfifted 
entirely  upon  private  benevolence,  and  the  charity  of  welldifpofed 
chriftians.  For,  though  it  appears  by  the  mirrourJ,  that  by  the 
common  law  the  poor  were  to  be  "  fuftained  by  parfons,  rectors 
*«  of  the  church,  and  the  pariihioners  ;  fo  that  none  of  them  dye 
"  for  default  of  fuflenance;"  and  though  by  the  Statutes  1 2  Ric.  II. 
c.  7.  and  19  Hen.  VII.  c.  12.  the  poor  are  directed  to  abide 
in  the  cities  or  fowns  wherein  they  were  born,  or  fuch  wherein 
they  had  dwelt  for  three  years  (which  feem  to  be  the  firft  rudi- 
ments of  parim  fettlements)  yet  till  the  flatute  26Hen.VIIL  c.  26. 
I  find  no  compulfory  method  chalked  out  for  this  purpofe  :  but 
the  poor  feem  to  have  been  left  to  fuch  relief  as  the  humanity 
of  their  neighbours  would  afford  them.  The  monasteries  were,. 
in  particular,  their  principal  refource  ;  and,  among  other  bad 
effects  which  attended  the  monafrlc  inftitutions,  it  was  not  per- 
haps one  of  the  leaft  (though  frequently  efleemed  quite  other- 
wife)  that  they  fupported  and  fed  a  very  numerous  and  very  idle 
poor,  whofe  fuftenance  depended  upon  what  was  daily  diftri- 
buted  in  alms  at  the  gates  of  the  religious  houfes.  But,  upon 
the  total  diffolution  of  thefe,  the  inconvenience  of  thus  encou- 

'  c.i.  §.3. 

raging 


360  Tie    RIGHTS  Bo  OK  I. 

raging  the  poor  in  habits  of  indolence  and  beggary  was  quickly 
felt  throughout  the  kingdom  :  and  abundance  of  ftatutes  were 
made  in  the  reign  of  king  Henry  the  eighth,  for  providing  for 
the  poor  and  impotent  ;  which,  the  preambles  to  fome  of  them 
recite,  had  of  late  years  ftrangely  increafed.  Thefe  poor  were 
principally  of  two  forts  :  fick  and  impotent,  and  therefore  unable 
to  work;  idle  and  fturdy,  and  therefore  able,  but  not  willing,  to 
exercife  any  honeft  employment.  To  provide  in  fome  meafure 
for  both  of  thefe,  in  and  about  the  metropolis,  his  fon  Edward 
the  fixth  founded  three  royal  hofpitals  j  Chrili's,  and  St. Thomas's 
for  the  relief  of  the  impotent  through  infancy  or  ficknefs  ;  and 
Bridewell  for  the  punifhment  and  employment  of  the  vigorous 
and  idle.  But  thefe  were  far  from  being  fufficient  for  the  care  of 
the  poor  throughout  the  kingdom  at  large  ;  and  therefore,  after 
many  other  fruitlefs  experiments,  by  ftatute  43  Eliz.  c.  2.  over- 
feers  of  the  poor  were  appointed  in  every  parifh. 

BY  virtue  of  the  ftatute  laft  mentioned,  thefe  overfeers  are  to 
be  nominated  yearly  in  Eafter-week,  or  within  one  month  after, 
(though  a  fubfequent  nomination  will  be  valid  k)  by  two  juftices 
dwelling  near  the  parifh.  They  muft  be  fubftantial  houmolders, 
and  fo  expreffed  to  be  in  the  appointment  of  the  jufticee '. 

TH  E  i  R  office  and  duty,  according  to  the  fame  ftatute,  are 
principally  thefe  :  firft,  to  raife  competent  fums  for  the  necelTary 
relief  of  the  poor,  impotent,  old,  blind,  and  fuch  other,  being 
poor  and  not  able  to  work  :  and,  fecondly,  to  provide  work  for 
fuch  as  are  able,  and  cannot  otherwife  get  employment :  but  this 
latter  part  of  their  duty,  which,  according  to  the  wife  regula- 
tions of  that  falutary  ftatute,  fhould  go  hand  in  hand  with  the 
other,  is  now  moft  ihamefully  negledled.  However,  for  thefe 
joint  purpofes,  they  are  empowered  to  make  and  levy  rates  upon 
the  feveral  inhabitants  of  the  parifh,  by  the  fame  adt  of  parlia- 
ment ;  which  has  been  farther  explained  and  enforced  by  feveral 
fubfequent  ftatutes. 

k  Stra.  1123.  '  z  Lord  Raym.  1394. 

THE 


Ch.  9.  of    PERSONS.  361 

THE  two  great  objedls  of  this  flatute  feem  to  have  been, 
i.  To  relieve  the  impotent  poor,  and  them  only.  2.  To  find 
employment  for  fuch  as  are  able  to  work  :  and  this  principally  by 
providing  flocks  to  be  worked  up  at  home,  which  perhaps  might 
be  more  beneficial  than  accumulating  all  the  poor  in  one  common 
work-houfe ;  a  practice  which  tends  to  deftroy  all  domeflic  con- 
nexions (the  only  felicity  of  the  honefl  and  induftrious  labourer) 
and  to  put  the  fober  and  diligent  upon  a  level,  in  point  of  their 
earnings,  with  thofe  who  are  difiblute  and  idle.  Whereas,  if  none 
were  to  be  relieved  but  thofe  who  are  incapable  to  get  their  livings, 
and  that  in  proportion  to  their  incapacity ;  if  no  children  were 
to  be  removed  from  their  parents,  but  fuch  as  are  brought  up  in 
rags  and  idlenefs  ;  and  if  every  poor  man  and  his  family  were 
employed  whenever  they  requested  it,  and  were  allowed  the  whole 
profits  of  their  labour; — a  fpirit  of  chearful  induftry  would  foon. 
diffufe  itfelf  through  every  cottage ;  work  would  become  eafy 
and  habitual,  when  abfolutely  necefTary  to  their  daily  fubfiftence  ; 
and  the  moft  indigent  peafant  would  go  through  his  tafk  without 
a  murmur,  if  allured  that  he  and  his  children  (when  inca- 
pable of  work  through  infancy,  age,  or  infirmity)  would  then, 
and  then  only,  be  intitled  to  fupport  from  his  opulent  neighbours. 

THIS  appears  to  have  been  the  plan  of  the  ftatute  of  queen 
Elizabeth  ;  in  which  the  only  defedl  was  confining  the  manage- 
ment of  the  poor  to  fmall,  parochial,  districts  j  which  are  fre- 
quently incapable  of  furniming  proper  work,  or  providing  an  able 
director.  However,  the  laborious  poor  were  then  at  liberty  to 
feek  employment  wherever  it  was  to  be  had  ;  none  being  obliged 
to  refide  in  the  places  of  their  fettlement,  but  fuch  as  were  un- 
able or  unwilling  to  work  ;  and  thofe  places  of  fettlement  being 
only  fuch  where  they  were  born,  or  had  made  their  abode,  ori- 
ginally for  three  years"1,  and  afterwards  (in  the  cafe  of  vagabonds) 
for  one  year  only ". 

m  Stat.  19  Hen.  VII.  c.  12.    i  Edw.VI.         "  Stat.  59  Eliz.  0.4. 
0.3.    3Edw.VJ.  c.  16.    14  Eliz.  c. 5. 

X  x  AFTER 


362  Tfe    RIGHTS  BOOK!. 

AFTER  the  reparation  a  very  different  plan  was  adopted, 
which  has  rendered  the  employment  of  the  poor  more  difficult, 
by  authorizing  the  fubdivifion  of  parifhes ;  has  greatly  increafed 
their  number,  by  confining  them  all  to  their  respective  diftricls ; 
has  given  birth  to  the  intricacy  of  our  poor-laws,  by  multiplying 
and  rendering  more  eafy  the  methods  of  gaining  fettlements ; 
and,  in  confequence,  has  created  an  infinity  of  expenfive  law- 
fuits  between  contending  neighbourhoods,  concerning  thofe  fettle- 
ments and  removals.  By  the  flatute  13  6c  14  Car.  II.  c.  12.  a  legal 
fettlement  was  declared  to  be  gained  bjr  birth,  or  by  inhabitancy, 
apprenticefhip,  or  fervice,  for  forty  days ;  within  which  period 
all  intruders  were  made  removeable  from  any  parifh  by  two  juf- 
tices  of  the  peace,  unlefs  they  fettled  in  a  tenement  of  the  an- 
nual value  of  10  /.  The  frauds,  naturally  confequent  upon  this 
provifion,  which  gave  a  fettlement  by  fo  fhort  a  refidence,  produ- 
ced the  flatute  i  Jac.  II.  c.  17.  which  directed  notice  in  writing  to 
be  delivered  to  the  parifh  officers,  before  a  fettlement  could  be 
gained  by  fuch  refidence.  Subfequent  provifions  allowed  other 
circumflances  of  notoriety  to  be  equivalent  to  fuch  notice  given  j 
and  thofe  circumflances  have  from  time  to  time  been  altered, 
enlarged,  or  reflrained,  whenever  the  experience  of  new  incon- 
veniences, arifing  daily  from  new  regulations,  fuggefled  the  ne- 
cefilty  of  a  remedy.  And  the  dodrine  of  certificates  was  invented, 
by  way  of  counterpoife,  to  reflrain  a  man  and  his  family  from  ac- 
quiring a  new  fettlement  by  any  length  of  refidence  whatever, 
unlefs  in  two  particular  excepted  cafes  j  which  makes  parifhes  very 
cautious  of  giving  fuch  certificates,  and  of  courfe  confines  the  poor 
at  home,  where  frequently  no  adequate  employment  can  be  had. 

THE  law  of  fettlements  may  be  therefore  now  reduced  to  the 
following  general  heads  ;  or,  a  fettlement  in  a  parifh  may  be  ac- 
quired, I .  By  birth ;  for,  wherever  a  child  is  firfl  known  to  be, 
that  is  always  prima  facie  the  place  of  fettlement,  until  fome 
other  can  be  fhewn  °.  This  is  alfo  always  the  place  of  fettlement 

«  Carth-433.  Comb.  364.  83^.485.   I  Lord  Ray m.  567. 

of 


Ch.  9.  of    PERSONS.  363 

of  a  baftard  child  ;  for  a  baftard,  having  in  the  eye  of  the  law 
no  father,  cannot  be  referred  to  his  fettlement,  as  other  children 
may  p.  But,  in  legitimate  children,  though  the  place  of  birth  be 
prima  facie  the  fettlement,  yet  it  is  not  conclufively  fo  ;  for  there 
are,  2.  Settlements  by  parentage,  being  the  fettlement  of  one's 
father  or  mother  :  all  children  being  really  fettled  in  the  parifh 
where  their  parents  are  fettled,  until  they  get  a  new  fettlement 
for  themfelves  q.  A  new  fettlement  may  be  acquired  feveral  ways  ; 
as,  3.  By  marriage.  For  a  woman,  marrying  a  man  that  is  fet- 
tled in  another  parim,  changes  her  own  :  the  law  not  permitting 
the  feparation  of  hufband  and  wife  r.  But  if  the  man  has  no  fet- 
tlement, her's  is  fufpended  during  his  life,  if  he  remains  in  Eng- 
land and  is  able  to  maintain  her  •,  but  in  his  abfence,  or  after  his 
death,  or  during  (perhaps)  his  inability,  fhe  may  return  to  her 
old  fettlement  s.  The  other  methods  of  acquiring  fettlements  in 
any  parifh  are  all  reducible  to  this  one,  of  forty  days  refidence 
therein  :  but  this  forty  days  reiidence  (which  is  conftrued  to  be 
lodging  or  lying  there)  muft  not  be  by  fraud,  or  ftealth,  or  in 
any  clandestine  manner  ;  but  accompanied  with  one  or  other  of 
the  following  concomitant  circumftances.  The  next  method 
therefore  of  gaining  a  fettlement,  is,  4.  By  forty  days  residence, 
and  notice.  For  if  a  ftranger  comes  into  a  parifh,  and  delivers 
notice  in  writing  of  his  place  of  abode,  and  number  of  his  fa- 
mily, to  one  of  the  overfeers  (which  muft  be  read  in  the  church 
and  regiftered)  and  refides  there  unmolefted  for  forty  days  after 
fuch  notice,  he  is  legally  fettled  thereby  '.  For  the  law  prefumes 
that  fuch  a  one  at  the  time  of  notice  is  not  likely  to  become 
chargeable,  elfe  he  would  not  venture  to  give  it;  or  that,  in 
fuch  cafe,  the  parim  would  take  care  to  remove  him.  But  there 
are  alfo  other  circumftances  equivalent  to  fuch  notice  :  therefore, 
5.  Renting  for  a  year  a  tenement  of  the  yearly  value  of  ten 
pounds,  and  refiding  forty  days  in  the  parifh,  gains  a  fettlement 

P  Salk.  427.  =  Foley.  249.  251,  252. 

s  Salk.  528.  2  Lord  Raym.  1473.  '  Stat.  13  &  14  Car.  II.  c.  1  2.    i  Jac.  II. 

rStra.544-  0.17.    3  &  4\V.  &  Mar.  c.  11. 


X  x  2  without 


364  3^2    RIGHTS  BOOK!. 

without  notice u ;  upon  the  principle  of  having  fubftance  enough 
to  gain  credit  for  fuch  a  houfe.  6.  Being  charged  to  and  paying 
the  public  taxes  and  levies  of  the  parim  j  (excepting  thofe  for 
fcavengers,  highways'",  and  windows")  and,  7.  Executing,  when 
legally  appointed,  any  public  parochial  office  for  a  whole  year  in 
the  parifh,  as  church-warden,  &c ;  are  both  of  them  equivalent 
to  notice,  and  gain  a  fettlement y,  if  coupled  with  a  refidence  of 
forty  days.  8.  Being  hired  for  a  year,  when  unmarried  and  child- 
lefs,  andjerving  a  year  in  the  fame  fervice ;  and  9.  Being  bound 
an  apprentice  for  feven  years  ;  give  the  fervant  and  apprentice  a 
fettlement,  without  notice  %  in  that  place  wherein  they  ferve  the 
laft  forty  days.  This  is  meant  to  encourage  application  to  trades, 
and  going  out  to  reputable  fervices.  10.  Laftly,  the  having  an 
ejlate  of  one's  own,  and  refiding  thereon  forty  days,  however 
fmall  the  value  may  be,  in  cafe  it  be  acquired  by  act  of  law  or 
of  a  third  perfon,  as  by  defcent,  gift,  devife,  &c,  is  a  fufficient 
fettlement a :  but  if  a  man  acquire  it  by  his  own  act,  as  by  pur- 
chafe,  (in  it's  popular  fenfe,  in  confideration  of  money  paid)  thenb 
unlefs  the  confideration  advanced,  bona  Jide,  be  307.  it  is  no 
fettlement  for  any  longer  time,  than  the  perfon  (hall  inhabit 
thereon.  He  is  in  no  cafe  removeable  from  his  own  property ; 
but  he  mail  not,  by  any  trifling  or  fraudulent  purchafe  of  his  own, 
acquire  a  permanent  and  lafting  fettlement. 

ALL  perfons,  not  fo  fettled,  may  be  removed  to  their  own 
parishes,  on  complaint  of  the  overfeers,  by  two  juflices  of  the 
peace,  if  they  mall  adjudge  them  likely  to  become  chargeable  to 
the  parim,  into  which  they  have  intruded  :  unlefs  they  are  in  a 
way  of  getting  a  legal  fettlement,  as  by  having  hired  a  houfe  of 
i  o  /.  per  annum,  or  living  in  an  annual  fervice  ;  for  then  they  are 
not  removeable  c.  And  in  all  other  cafes,  if  the  parim  to  which 
they  belong,  will  grant  them  a  certificate,  acknowleging  them 

•  Stat.  13  &  i4.Car.II.  c.  12.  z  ttid.  8  &9\V.III.  c.io.  3iGeo.II.  c.ii. 

"  Stat.  9Geo.  I.  0.7.  §.6.  »  Salk.ja^..' 

1  Stat.  21  Geo.  II.  c.  10.   §.13.  b  Stat.  gGeo.I.  c.  7. 

?  Stat.  3&4W.  &M.  c.  11.  cSalk.472. 

to 


Ch.  9.  of   PERSONS.  365 

to  be  their  parishioners,  they  cannot  be  removed  merely  becaufe 
likely  to  become  chargeable,  but  only  when  they  become  aflually 
chargeable d.  But  fuch  certificated  perfons  can  gain  no  fettlement 
by  any  of  the  means  above-mentioned  >  unlefs  by  renting  a  tene- 
ment of  io/.  per  annum,  or  by  ferving  an  annual  office  in  the 
parifh,  being  legally  placed  therein  :  neither  can  an  apprentice 
or  fervant  to  fuch  certificated  perfon  gain  a  fettlement  by  fuch 
their  fervice  e. 

TH  E  s  E  are  the  general  heads  of  the  laws  relating  to  the  poor,, 
which,  by  the  refolutions  of  the  courts  of  juftice  thereon  within 
a  century  paft,  are  branched  into  a  great  variety.  And  yet,  not- 
withftanding  the  pains  that  have  been  taken  about  them,  they  flill 
remain  very  imperfect,  and  inadequate  to  the  purpofes  they  are 
defigned  for  :  a  fate,  .that  has  generally  attended  moft  of  our 
ftatute  laws,  where  they  have  not  the  foundation  of  the  common 
law  to  build  on.  When  the  {hires,  the  hundreds,  and  the  tith- 
ings,  were  kept  in  the  fame  admirable  order  that  they  were  dif- 
pofed  in  by  the  great  Alfred,  there  were  no  perfons  idle,  confe- 
quently  none  but  the  impotent  that  needed  relief :  and  the  fla- 
tute  of  43  Eliz.  feems  entirely  founded  on  the  fame  principle. 
But  when  this  excellent  fcheme  was  neglected  and  departed  from, 
we  cannot  but  obferve  with  concern,  what  miferable  fhifts  and 
lame  expedients  have  from  time  to  time  been  adopted,  in  order  to 
patch  up  the  flaws  occafioned  by  this  neglect.  There  is  not  a- 
more  necefTary  or  more  certain  maxim  in  the  frame  and  conflitu- 
tion  of  fociety,  than  that  every  individual  muft  contribute  his 
{hare,  in  order  to  the  well-being  of  the  community  :  and  furely 
they  muft  be  very  deficient  in  found  policy,  who  fuifer  one  half 
of  a  parifh  to  continue  idle,  difTolute,  and  unemployed ;  and  then 
form  vifionary  fchemes,  and  at  length  are  amazed  to  find,  that 
the  induftry  of  the  other  half  is  not  able  to  maintain  the  whole,. 

d  Stat.  8&9\V.  III.  c.  30.  «  Stat.  12  Ann.  c.i8. 


366  Tie    RIGHTS  BOOK!. 


CHAPTER    THE     TENTH. 

OF     THE     PEOPLE,    WHETHER    ALIENS, 
DENIZENS,    OR    NATIVES. 


HAV  ING,  in  the  eight  preceding  chapters,  treated  of  per- 
fons  as  they  ftand  in  the  public  relations  of  magiftrates,  I 
now  proceed  to  confider  fuch  perfons  as  fall  under  the  denomina- 
tion of  the  people.    And  herein  all  the  inferior  and  fubordinate 
magiftrates,  treated  of  in  the  laft  chapter,  are  included. 

THE  firfl  and  mo-ft  obvious  divifion  of  the  people  is  into 
aliens  and  natural-born  fubjeds.  Natural-born  fubjects  are  fuch 
as  are  born  within  the  dominions  of  the  crown  of  England,  that 
is,  within  the  ligeance,  or,  as  it  is  generally  called,  the  allegiance 
of  the  king  ;  and  aliens,  fuch  as  are  born  out  of  it.  Allegiance  is 
the  tie,  or  ligamen,  which  binds  the  fubjeft  to  the  king,  in  return 
for  that  protection  which  the  king  affords  the  fubjecl:.  The  thing 
itfelf,  or  fubftantial  part  of  it,  is  founded  in  reafon  and  the  na- 
ture of  government ;  the  name  and  the  form  are  derived  to  us 
from  our  Gothic  anceftors.  Under  the  feodal  fyftem,  every  owner 
of  lands  held  them  in  fubjeftion  to  fome  fuperior  or  lord,  from 
whom  or  whofe  anceftors  the  tenant  or  vafal  had  received  them  : 
and  there  was  a  mutual  truft  or  confidence  fubfifting  between 
the  lord  and  vafal,  that  the  lord  mould  protect  the  vafal  in  the 
enjoyment  of  the  territory  he  had  granted  him,  and,  on  the 

other 


Ch.  io.  of    PERSONS.  367 

other  hand,  that  the  vafal  mould  be  faithful  to  the  lord  and  de- 
fend him  againft  all  his  enemies.  This  obligation  on  the  part  of 
the  vafal  was  called  his  Jidditas  or  fealty  j  and  an  oath  of  fealty 
was  required,  by  the  feodal  law,  to  be  taken  by  all  tenants  to 
their  landlord,  which  is  couched  in  almoft  the  fame  terms  as  our 
antient  oath  of  allegiance a :  except  that  in  the  ufual  oath  of  fealty 
there  was  frequently  a  faving  or  exception  of  the  faith  due  to  a 
fuperior  lord  by  name,  under  whom  the  landlord  himfelf  was 
perhaps  only  a  tenant  or  vafal.  But  when  the  acknowlegement 
was  made  to  the  abfolute  fuperior  himfelf,  who  was  vafal  to  no 
man,  it  was  no  longer  called  the  oath  of  fealty,  but  the  oath  of 
allegiance ;  and  therein  the  tenant  fwore  to  bear  faith  to  his  fo- 
vereign  lord,  in  oppoiition  to  all  men,  without  any  faving  or  ex- 
ception :  "  contra  omnes  homines  fidelitatem  fecit b."  Land  held 
by  this  exalted  fpecies  of  fealty  was  called  feudum  ligium,  a  liege 
fee  ;  the  vafals  homines  ligii,  or  liege  men ;  and  the  fovereign  their 
dominus  ligins,  or  liege  lord.  And  when  fovereign  princes  did 
homage  to  each  other,  for  lands  held  under  their  refpeclive  fo- 
vereignties,  a  diftindtion  was  always  made  be tween//w/>/k  homage, 
which  was  only  an  acknowlegement  of  tenure0;  and  liege  homage, 
which  included  the  fealty  before-mentioned,  and  the  fervices  con- 
fequent  upon  it.  Thus  when  our  Edward  III,  in  1329,  did  homage 
to  Philip  VI  of  France,  for  his  ducal  dominions  on  that  conti- 
nent, it  was  warmly  difputed  of  what  fpecies  the  homage  was  to 
be,  whether  liege  or  Jimp le  homage d.  But  with  us  in  England,  it 
becoming  a  fettled  principle  of  tenure,  that  all  lands  in  the  king- 
dom are  holdenof  the  king  as  their  fovereign  and  lord  paramount,, 
no  oath  but  that  of  fealty  could  ever  be  taken  to  inferior  lords, 
and  the  oath  of  allegiance  was  neceflarily  confined  to  the  perfon 
of  the  king  alone.  By  an  eafy  analogy  the  term  of  allegiance  was 
foon  brought  to  fignify  all  other  engagements,  which  are  due 
from  fubjedts  to  their  prince,  as  well  as  thofe  duties  which  were 
limply  and  merely  territorial.  And  the  oath  of  allegiance,  as  ad- 

a  2  Feud.  5 ,  6,  7 .  c  7  Rep.  Calvin's  cafe.  7. 

b  2  Feud.  99.  *  2  Carte.  401.  Mod.  Un.  Hift.  xxiii-42o. 

miniftred 


368  The    RIGHTS  BOOK  I. 

miniftred  for  upwards  of  fix  hundred  years  %  contained  a  promife 
"  to  be  true  and  faithful  to  the  king  and  his  heirs,  and  truth  and 
"  faith  to  bear  of  life  and  limb  and  terrene  honour,  and  not  to 
"  know  or  hear  of  any  ill  or  damage  intended  him,  without  de- 
"  fending  him  therefrom."  Upon  which  fir  Matthew  Hale f  makes 
this  remark;  that  it  was  mort  and  plain,  not  entangled  with  long 
or  intricate  claufes  or  declarations,  and  yet  is  comprehenfive  of 
the  whole  duty  from  the  fubject  to  his  fovereign.  But,  at  the  re- 
volution, the  terms  of  this  oath  being  thought  perhaps  to  favour 
too  much  the  notion  of  non-refiftance,  the  preient  form  was  in- 
troduced by  the  convention  parliament,  which  is  more  general 
and  indeterminate  than  the  former  ;  the  fubjec~l  only  promifmg 
"  that  he  will  be  faithful  and  bear  true  allegiance  to  the  king," 
without  mentioning  "  his  heirs,"  or  fpecifying  in  the  leaft  wherein 
that  allegiance  confifts.  The  oath  of  fupremacy  is  principally 
calculated  as  a  renuntiation  of  the  pope's  pretended  authority  : 
and  the  oath  of  abjuration,  introduced  in  the  reign  of  king  Wil- 
liam g,  very  amply  fupplies  the  loofe  and  general  texture  of  the 
oath  of  allegiance  ;  it  recognizing  the  right  of  his  majefty,  de- 
rived under  the  act  of  fettlement ;  engaging  to  fupport  him  to 
the  utmoft  of  the  juror's  power  ;  promifmg  to  difclofe  all  traite- 
rous  confpiracies  againft  him ;  and  expreffly  renouncing  any  claim 
of  the  defcendants  of  the  late  pretender,  in  as  clear  and  explicit 
terms  as  the  Englifh  language  can  furniih.  This  oath  muft  be 
taken  by  all  perfons  in  any  office,  trufl,  or  employment -,  and  may 
be  tendered  by  two  juftices  of  the  peace  to  any  perfon,  whom  they 
fliall  fufpedt  of  difaffeclion  h.  And  the  oath  of  allegiance  may  be 
tendered '  to  all  perfons  above  the  age  of  twelve  years,  whether 
natives,  denizens,  or  aliens,  either  in  the  court-leet  of  the  manor, 
or  in  the  meriff's  tourn,  which  is  the  court-leet  of  the  county. 

BUT,  befides  thefe  exprefs  engagements,  the  law  alfo  holds 
that  there  is  an  implied,  original,  and  virtual  allegiance,  owing 

c  Mirror,  c.  3.  §.  35.    FIeta.3.i6.   Brit-         f  Stat.  ^Will.  III.  c.  6. 
ton.  c.  29.    7  Rep.  Calvin's  cafe.  6.  h  Stat.  iGeo.I.  c.  13.    6Geo.  III.  0.53. 

f  i  Hal.  P.  C.  63.  izlnft.  121.     i  Hal.  P.  C.  64. 

from 


Ch.  io.  of    PERSONS.  369 

from  every  fubjecl:  to  his  fovereign,  antecedently  to  any  exprefs 
promife ;  and  although  the  fubjedt  never  fwore  any  faith  or  alle- 
giance in  form.  For  as  the  king,  by  the  very  defcent  of  the 
crown,  is  fully  inverted  with  all  the  rights  and  bound  to  all  the 
duties  of  fovereignty,  before  his  coronation ;  fo  the  fubjedt  is 
bound  to  his  prince  by  an  intrinfic  allegiance,  before  the  fuper- 
indudtion  of  thofe  outward  bonds  of  oath,  homage,  and  fealty ; 
which  were  only  instituted  to  remind  the  fubjedt  of  this  his  pre- 
vious duty,  an^l  for  the  better  fecuring  it's  performance  k.  The 
formal  profeffion  therefore,  or  oath  of  fubjeclion,  is  nothing 
more  than  a  declaration  in  words  of  what  was  before  implied  in 
law.  Which  occafions  fir  Edward  Coke  very  juftly  to  obferve ', 
that  "all  fubjedls  are  equally  bounden  to  their  allegiance,  as  if 
"  they  had  taken  the  oath ;  becaufe  it  is  written  by  the  finger  of 
"  the  law  in  their  hearts,  and  the  taking  of  the  corporal  oath  is 
"  but  an  outward  declaration  of  the  fame."  The  fandHon  of  an 
oath,  it  is  true,  in  cafe  of  violation  of  duty,  makes  the  guilt  ftill 
more  accumulated,  by  fuperadding  perjury  to  treafonj  but  it 
does  not  encreafe  the  civil  obligation  to  loyalty}  it  only  Strengthens 
the  facial  tie  by  uniting  it  with  that  of  religion. 

ALLEGIANCE,  both  exprefs  and  implied,  is  however  dif- 
tinguifhed  by  the  law  into  two  forts  or  fpecies,  the  one  natural, 
the  other  local  -,  the  former  being  alfo  perpetual,  the  latter  tem- 
porary. Natural  allegiance  is  fuch  as  is  due  from  all  men  born 
within  the  king's  dominions  immediately  upon  their  birth  m.  For, 
immediately  upon  their  birth,  they  are  under  the  king's  protec- 
tion ;  at  a  time  too,  when  (during  their  infancy)  they  are  inca- 
pable of  protecting  themfelves.  Natural  alkgiance  is  therefore  a 
debt  of  gratitude  ;  which  cannot  be  forfeited,  cancelled,  or  al- 
tered, by  any  change  of  time,  place,  or  circumftance,  nor  by  any 
thing  but  the  united  concurrence  of  the  legiflature  ".  An  Englifh- 
man  who  removes  to  France,  or  to  China,  owes  the  fame  alle- 
giance to  the  king  of  England  there  as  at  home,  and  twenty  years 

k    i  Hal.  P.  C.  61.  "7  Rep.  7. 

1  2  Inft.  121  "  2  P.  Wm>.  124. 

Y  y  hence 


370  r^e    RIGHTS  BOOK!. 

hence  as  well  as  now.  For  it  is  a  principle  of  univerfal  law  °, 
that  the  natural-born  fubject  of  one  prince  cannot  by  any  act  of 
his  own,  no,  not  by  fwearing  allegiance  to  another,  put  ofF  or 
difcharo-e  his  natural  allegiance  to  the  former :  for  this  natural 
allegiance  was  intriniic,  and  primitive,  and  antecedent  to  the 
other  ;  and  cannot  be  devefted  without  the  concurrent  act  of  that 
prince  to  whom  it  was  firfh  due.  Indeed  the  natural-born  fubject 
of  one  prince,  to  whom  he  owes  allegiance,  may  be  entangled 
by  fubjecting  himfelf  abfolutely  to  another;  but  it  is  his  own  act 
that  brings  him  into  thefe  {traits  and  difficulties,  of  owing  fervice 
to  two  mafters  j  and  it  is  unreafonable  that,  by  fuch  voluntary  act 
of  his  own,  he  fhould  be  able  at  pleafure  to  unlooie  thofe  bands, 
by  which  he  is  connected  to  his  natural  prince. 

LOCAL  allegiance  is  fuch  as  is  due  from  an  alien,  or  ftranger 
born,  for  fo  long  time  as  he  continues  within  the  king's  dominion 
and  protection  p :  and  it  ceafes,  the  inftant  fuch  ftranger  transfers 
himfelf  from  this  kingdom  to  another.  Natural  allegiance  is  there- 
fore perpetual,  and  local  temporary  only  :  and  that  for  this  rea- 
fon,  evidently  founded  upon  the  nature  of  government ;  that  al- 
legiance is  a  debt  due  from  the  fubject,  upon  an  implied  contract 
with  the  prince,  that  fo  long  as  the  one  affords  protection,  fo 
long  the  other  will  demean  himfelf  faithfully.  As  therefore  the 
prince  is  always  under  a  conftant  tie  to  protect  his  natural-born 
fubjects,  at  all  times  and  in  all  countries,  for  this  reafon  their  al- 
legiance due  to  him  is  equally  univerfal  and  permanent.  But,  on 
the  other  hand,  as  the  prince  affords  his  protection  to  an  alien, 
only  during  his  refidence  in  this  realm,  the  allegiance  of  an  alien 
is  confined  (in  point  of  time)  to  the  duration  of  fuch  his  refidence, 
and  (in  point  of  locality)  to  the  dominions  of  the  Britifh  empire. 
From  which  confiderations  fir  Matthew  Hale q  deduces  this  con- 
fequence,  that,  though  there  be  an  ufurper  of  the  crown,  yet  it 
is  treafon  for  any  fubject,  while  the  ufurper  is  in  full  pofleffion  of 
the  fovereignty,  to  practice  any  thing  againft  his  crown  and  dig- 

0  i  Hal.  P.  C.  68.  i  I  Hal.  P.  C.  60. 

P  7  Rep.  6. 

nity : 


Ch.  io.  of    PERSONS.~  371 

nity  :  wherefore,  although  the  true  prince  regain  the  fovereignty, 
yet  fuch  attempts  againft  the  ufurper  (unlefs  in  defence  or  aid  of 
the  rightful  king)  have  been  afterwards  punifhed  with  death; 
becaufe  of  the  breach  of  that  temporary  allegiance,  which  was 
due  to  him  as  king  de  faSio.  And  upon  this  footing,  after  Ed- 
ward IV  recovered  the  crown,  which  had  been  long  detained 
from  his  houfe  by  the  line  of  Lancafler,  treafons  committed 
againft  Henry  VI  were  capitally  punifhed,  though  Henry  had 
been  declared  an  ufurper  by  parliament. 

THIS  oath  of  allegiance,  or  rather  the  allegiance  itfelf,  is 
held  to  be  applicable  not  only  to  the  political  capacity  of  the  king, 
or  regal  office,  but  to  his  natural  perfon,  and  blood-royal :  and 
for  the  mifapplication  of  their  allegiance,  viz.  to  the  regal  capa- 
city or  crown,  excluiive  of  the  perfon  of  the  king,  were  the 
Spencers  banilhed  in  the  reign  of  Edward  II r.  And  from  hence 
arofe  that  principle  of  perfonal  attachment,  and  affectionate  loy- 
alty, which  induced  our  forefathers  (and,  if  occafion  required, 
would  doubtlefs  induce  their  fons)  to  hazard  all  that  was  dear  to 
them,  life,  fortune,  and  family,  in  defence  and  fupport  of  their 
liege  lord  and  fovereign. 

THIS  allegiance  then,  both  exprefs  and  implied,  is  the  duty 
of  all  the  king's  fubjedls,  under  the  diftinclions  here  laid  down, 
of  local  and  temporary,  or  univerfal  and  perpetual.  Their  rights 
are  alfo  diftinguifhable  by  the  fame  criterions  of  time  and  loca- 
lity j  natural-born  fubjedls  having  a  great  variety  of  rights,  which 
they  acquire  by  being  born  within  the  king's  ligeance,  and  can 
never  forfeit  by  any  diftance  of  place  or  time,  but  only  by  their 
own  mifbehaviour :  the  explanation  of  which  rights  is  the  prin- 
cipal fubjecl:  of  the  two  firft  books  of  thefe  commentaries.  The 
fame  is  alfo  in  fome  degree  the  cafe  of  aliens  -,  though  their  rights 
are  much  more  circumfcribed,  being  acquired  only  by  refidence 
here,  and  loft  whenever  they  remove.  I  fhall  however  here  en- 
deavour to  chalk  out  fome  of  the  principal  lines,  whereby  they 

'   i  Hal.  P.  C.  67. 

Y  y  2  are 


372  The    RIGHTS  BOOK!. 

are  diftinguifhed  from  natives,  defcending  to  farther  particulars 
when  they  come  in  courfe. 

A  N  alien  born  may  purchafe  lands,  or  other  eftates  :  but  not 
for  his  own  ufe;  for  the  king  is  thereupon  entitled  to  them3.  If 
an  alien  could  acquire  a  permanent  property  in  lands,  he  muft 
owe  an  allegiance,  equally  permanent  with  that  property,  to  the 
king  of  England;  which  would  probably  be  inconfiftent  with 
that,  which  he  owes  to  his  own  natural  liege  lord  :  befides  that 
thereby  the  nation  might  in  time  be  fubject  to  foreign  influence, 
and  feel  many  other  inconveniences.  Wherefore  by  the  civil  law 
fuch  contracts  were  alfo  made  void1 :  but  the  prince  had  no  fuch 
advantage  of  forfeiture  thereby,  as  with  us  in  England.  Among 
other  reafons,  which  might  be  given  for  our  conftitution,  it  feems 
to  be  intended  by  way  of  punifhment  for  the  alien's  prefumption, 
in  attempting  to  acquire  any  landed  property :  for  the  vendor  is 
not  affected  by  it,  he  having  religned  his  right,  and  received  an 
equivalent  in  exchange.  Yet  an  alien  may  acquire  a  property  in 
goods,  money,  and  other  perfonal  eftate,  or  may  hire  a  houfe  for 
his  habitation  u  :  for  perfonal  eftate  is  of  a  tranfitory  and  moveable 
nature ;  and,  befides,  this  indulgence  to  ftrangers  is  neceffary  for 
the  advancement  of  trade.  Aliens  alfo  may  trade  as  freely  as  other 
people ,  only  they  are  fubject  to  certain  higher  duties  at  the  cuf- 
tom-houfe :  and  there  are  alfo  fome  obfolete  ftatutes  of  Henry  VIII, 
prohibiting  alien  artificers  to  work  for  themfelves  in  this  king- 
dom ;  but  it  is  generally  held  they  were  virtually  repealed  by 
flatute  5Eliz.  c.j.  Alfo  an  alien  may  bring  an  action  concerning 
perfonal  property,  and  may  make  a  will,  and  difpofe  of  his  per- 
fonal eftaie w  :  not  as  it  is  in  France,  where  the  king  at  the 
death  of  an  alien  is  entitled  to  all  he  is  worth,  by  the  droit  d'au- 
balne  ex  jus  albinatus*,  unlefs  he  has  a  peculiar  exemption.  When 
I  mention  thefe  rights  of  an  alien,  I  mufl  be  understood  of  alien- 
friends  only,  or  fuch  whofe  countries  are  in  peace  with  ours ;  for 

s  Co.  Litt.  2.  w  I  utw.  34. 

*  Cod.  I.  n.  ///.  55.  *  The  word  is  derived  from  alibi  natus; 

u  7  Rep.  17.  Spelra.  Ol.  24. 

alien- 


Ch.  10.  of   PERSON  s.  373 

alien-enemies  have  no  rights,  no  privileges,  unlefs  by  the  king's 
fpecial  favour,  during  the  time  of  war. 

WHEN  I  fay,  that  an  alien  is  one  who  is  born  out  of  the  king's 
dominions,  or  allegiance,  this  alfo  muft  be  underftood  with  fome 
restrictions.  The  common  law  indeed  ftood  ablblutely  fo  ;  with 
only  a  very  few  exceptions  :  fo  that  a  particular  aft  of  parliament 
became  neceflary  after  the  restoration y,  "  for  the  naturalization  of 
«'  children  of  his  majefty's  Englifh  fubjects,  born  in  foreign  coun- 
"  tries  during  the  late  troubles."  And  this  maxim  of  the  law  pro- 
ceeded upon  a  general  principle,  that  every  man  owes  natural  al- 
legiance where  he  is  born,  and  cannot  owe  two  fuch  allegiances, 
or  ferve  two  mafters,  at  once.  Yet  the  children  of  the  king's 
embaifadors  born  abroad  were  always  held  to  be  natural  fubjects  z : 
for  as  the  father,  though  in  a  foreign  country,  owes  not  even  a 
local  allegiance  to  the  prince  to  whom  he  is  lent ;.  fo,  with  re- 
gard to  the  fon  alfo,  he  was  held  (by  a  kind  of  poJHiminium}  to 
be  born  under  the  king  of  England's  allegiance,  reprefented  by  his 
father,  the  embaffador.  To  encourage  alfo  foreign  commerce,  it 
was  enacted  by  ftatute  25  Edw.  III.  ft.  2.  that  all  children  born 
abroad,  provided  both  their  parents  were  at  the  time  of  the  birth 
in  allegiance  to  the  king,  and  the  mother  had  paiTed  the  feas  by 
her  huiband's  confent,  might  inherit  as  if  born  in  England  :  and 
accordingly  it  hath  been  fo  adjudged  in  behalf  of  merchants  a.  But 
by  feveral  more  modern  ftatutes b  thefe  reftridtions  are  ftill  farther 
taken  off:  fo  that  all  children,  born  out  of  the  king's  ligeance, 
whofe  fathers  were  natural-born  fubjects,  are  now  natural-born 
fubjects  themfelves,  to  all  intents  and  purpofes,  without  any  ex- 
ception ;  unlefs  their  faid  fathers  were  attainted,  or  banifhed  be- 
yond lea,  for  high  treafon  ;  or  were  then  in  the  lervice  of  a  prince 
at  enmity  with  Great  Britain. 

THE  children  of  aliens,  born  here  in  England,  are,  generally 
ipeaking,  natural-born  fubjects,  and  entitled  to  ail  the  privileges 

y  Stat.  29  Car.  II.  c.  6.  *  Cro  Car.  60 1.  Mar. 91     Jenk.  Cent. 3. 

z  7  Rep.  1 8.  b  7  Ann.  €.5.  and  4  Geo,  II.  c.  21. 

Of 


374  }e    RIGHTS  BOOK!. 

of  fuch.  In  which  the  constitution  of  France  differs  from  ours  ; 
for  there,  by  their  jus  albinatus,  if  a  child  be  born  of  foreign 
parents,  it  is  an  alien  c. 

A  DENIZEN  is  an  alien  born,  but  who  has  obtained  ex  do- 
natione  regis  letters  patent  to  make  him  an  Engliih  fubjec~t :  a  high 
and  incommunicable  branch  of  the  royal  prerogative"1.  A  deni- 
zen is  in  a  kind  of  middle  ftate  between  an  alien,  and  natural- 
born  fubjeft,  and  partakes  of  both  of  them.  He  may  take  lands 
by  purchafe  or  devife,  which  an  alien  may  not ;  but  cannot  take 
by  inheritance e :  for  his  parent,  through  whom  he  muft  claim, 
being  an  alien  had  no  inheritable  blood,  and  therefore  could  con- 
vey none  to  the  fon.  And,  upon  a  like  defect  of  hereditary  blood, 
the  iffue  of  a  denizen,  born  before  denization,  cannot  inherit  to 
him  ;  but  his  iffue  born  after,  may  f.  A  denizen  is  not  excufed % 
from  paying  the  alien's  duty,  and  fome  other  mercantile  burthens. 
And  no  denizen  can  be  of  the  privy  council,  or  either  houfe  of 
parliament,  or  have  any  office  of  trufr,  civil  or  military,  or  be 
capable  of  any  grant  from  the  crown  h. 

NATURALIZATION  cannot  be  performed  but  by  act  of 
parliament  :  for  by  this  an  alien  is  put  in  exactly  the  fame  ftate 
as  if  he  had  been  born  in  the  king's  ligeance ;  except  only  that 
he  is  incapable,  as  well  as  a  denizen,  of  being  a  member  of  the 
privy  council,  or  parliament,  &c  \  No  bill  for  naturalization  can 
be  received  in  either  houfe  of  parliament,  without  fuch  difabling 
claufe  in  it k.  Neither  can  any  perfon  be  naturalized  or  reftored 
in  blood,  unlefs  he  hath  received  the  facrament  of  the  Lord's  fup- 
per  within  one  month  before  the  bringing  in  of  the  bill;  and 
ualels  he  alfo  takes  the  oaths  of  allegiance  and  fupremacy  in  the 
prefence  of  the  parliament '. 


c  Jenk.  Cent. 3.  cites  trta/vrefranfoit,  312. 

d  7  Rep.  Calvin's  cafe.  25. 

e  it  Rep   67. 

f  Co.  Litt.  8.    Vaugh.  285. 

e  Stat.  22  Hen.  VIII.  c.  8. 


h  Stat.  1 2  W.  III.  c.2. 
1  Ibid. 

k  Stat.  i  Geo.  I.   c.  4. 
1  Stat.  7  Jac.  I.  c.  2. 


THES  E 


Ch.  io.  of    PERSONS.  375 

THESE  are  the  principal  diftindtions  between  aliens,  denizens, 
and  natives  :  diftindtions,  which  endeavours  have  been  frequently 
ufed  fmce  the  commencement  of  this  century  to  lay  almofl  totally 
afide,  by  one  general  naturalization-adl  for  all  foreign  proteftants. 
An  attempt  which  was  once  carried  into  execution  by  the  ftatute 
7  Ann.  c.  5.  but  this,  after  three  years  experience  of  it,  was  re- 
pealed by  the  ftatute  loAnn.  c-5-  except  one  claufe,  which  was 
juft  now  mentioned,  for  naturalizing  the  children  of  Englifh  pa- 
rents born  abroad.  However,  every  foreign  feaman  who  in  time 
of  war  ierves  two  years  on  board  an  Englifh  fhip  is  iffo  JaSlo  na- 
turalized m  ;  and  all  foreign  proteftants,  and  Jews,  upon  their  refi- 
ding  feven  years  in  any  of  the  American  colonies,  without  being 
abfent  above  two  months  at  a  time,  are  upon  taking  the  oaths 
naturalized  to  all  intents  and  purpofes,  as  if  they  had  been  born 
in  this  kingdom  n ;  and  therefore  are  admiflible  to  all  fuch  privi- 
leges, and  no  other,  as  proteftants  or  Jews  born  in  this  kingdom- 
are  entitled  to.  What  thofe  privileges  are  °,  was  the  fubjedl  of 
very  high  debates  about  the  time  of  the  famous  Jew-bill p;  which 
enabled  all  Jews  to  prefer  bills  of  naturalization  in  parliament, 
without  receiving  the  facrament,  as  ordained  by  ftatute  7Jac.  I. 
It  is  not  my  intention  to  revive  this  controverfy  again ;  for  the 
act  lived  only  a  few  months,  and  was  then  repealed  q :  therefore 
peace  be  now  to  it's  manes. 

m  Stat.  i3Geo.  II.  €.3.  till  their  banifliment  in  8  Edw.  I.   may  be 

*  Stat.  1 3  Geo.  II.  c. 7.  zoGeo.  II.  0.24.  found  in  Molloy  de  jure  maritime,  b.  3.  C.  6. 
2  Geo.  III.  c.  25.  f  Stat.  26  Geo.  II.   c.  26. 

0  A  pretty  accurate  account  of  the  Jews,        1  Stat.  27  Geo.  II.  c.  I. 


'376  3%e    RIGHTS  BOOK!. 


CHAPTER     THE      ELEVENTH. 
OF     THE     CLERGY. 


THE  people,  whether  aliens,  denizens,  or  natural-born  fub- 
jec~t.s,  are  divifible  into  two  kinds ;    the  clergy  and  laity  : 
the  clergy,  comprehending  all  perfons  in  holy  orders,  and  in  ec- 
clefiaftical  offices,  will  be  the  fubjecT:  of  the  following  chapter. 

THIS  venerable  body  of  men,  being  feparate  and  fet  apart 
from  the  reft  of  the  people,  in  order  to  attend  the  more  clofely 
to  the  fervice  of  almighty  God,  have  thereupon  large  privileges 
allowed  them  by  our  municipal  laws  :  and  had  formerly  much 
greater,  which  were  abridged  at  the  time  of  the  reformation  on 
account  of  the  ill  ufe  which  the  popifh  clergy  had  endeavoured 
to  make  of  them.  For,  the  laws  having  exempted  them  from 
almoft  every  perfonal  duty,  they  attempted  a  total  exemption  from 
every  fecular  tie.  But  it  is  obferved  by  fir  Edward  Coke3,  that,  as 
the  overflowing  of  waters  doth  many  times  make  the  river  to  lofe 
it's  proper  chanel,  fo  in  times  paft  ecclefiaftical  perfons,  feeking  to 
extend  their  liberties  beyond  their  true  bounds,  either  loft  or  enjoy- 
ed not  thofe  which  of  right  belonged  to  them.  The  perfonal  ex- 
emptions do  indeed  for  the  moft  part  continue.  A  clergyman  can- 
not be  compelled  to  ferve  on  a  jury,  nor  to  appear  at  a  court-leet 
or  view  of  frank  pledge;  which  almoft  every  other  peribn  is  obliged 
to  dob:  but,  if  a  layman  is  fummoned  on  a  jury,  and  before  the 

•  zlnft.  4.  b  F.  N.  B.  160.    2  Inft.  4. 

trial 


Ch.  ii.  of    PERSONS.  377 

trial  takes  orders,  he  fhall  notwithstanding  appear  and  be  fworn c. 
Neither  can  he  be  chofen  to  any  temporal  office ;  as  bailiff,  reeve, 
conftable,  or  the  like  :  in  regard  of  his  own  continual  attendance 
on  the  facred  function d.  During  his  attendance  on  divine  fervice 
he  is  privileged  from  arrefts  in  civil  fuits  °.  In  cafes  alfo  of  felony, 
a  clerk  in  orders  fhall  have  the  benefit  of  his  clergy,  without 
being  branded  in  the  hand ;  and  may  likewife  have  it  more  than 
once  :  in  both  which  particulars  he  is  diftinguifhed  from  a  lay- 
man f.  But  as  they  have  their  privileges,  fo  alfo  they  have  their 
difabilities,  on  account  of  their  fpiritual  avocations.  Clergymen, 
we  have  feen 6,  are  incapable  of  fitting  in  the  houfe  of  commons ; 
and  by  ftatute  21  Hen. VIII.  c.  13.  are  not  (in  general)  allowed  to 
take  any  lands  or  tenements  to  farm,  upon  pain  of  io/.  per  month, 
and  total  avoidance  of  the  leafe;  nor  fhall  engage  in  any  manner 
of  trade,  nor  fell  any  merchandize,  under  forfeiture  of  the  treble 
value.  Which  prohibition  is  confonant  to  the  canon  law. 

IN  the  frame  and  constitution  of  ecclefiaftical  polity  there  are 
divers  ranks  and  degrees  :  which  I  fhall  confider  in  their  refpec- 
tive  order,  merely  as  they  are  taken  notice  of  by  the  fecular  laws 
of  England ;  without  intermeddling  with  the  canons  and  confti- 
tutions,  by  which  the  clergy  have  bound  themfelves.  And  un- 
der each  divifion  I  mall  confider,  i.  The  method  of  their  ap- 
pointment ;  2.  Their  rights  and  duties;  and  3.  The  manner 
wherein  their  character  or  office  may  ceafe. 

I.  A  N  arch-bifhop  or  bifhop  is  elected  by  the  chapter  of  the 
cathedral  church,  by  virtue  of  a  licence  from  the  crown.  Elec- 
tion v/as,  in  very  early  times,  the  ufual  mode  of  elevation  to  the 
epifcopal  chair  throughout  all  chriftendom ;  and  this  was  pro- 
mifcuoufly  performed  by  the  laity  as  well  as  the  clergy  h :  till  at 
length,  it  becoming  tumultuous,  the  emperors  and  other  fovereigns 

c  4  Leon.  190.  i  Edw.VI.  c.  12. 

*  Finch.  L.  88.  z  page  175. 

"  Stat.  JCJEdw.  III.  6.5.    i  Ric.  II.  c.l6.  h  per  derum  et  populum.    Palm.zj.    2  Roll. 

f  zlnft.  637.    Stat.  4.Hen.VII.  c.  13.  &  Rep.ioz.    M.  Paris.  A.D.  1095. 

Z  z  of 


378  The    RIGHTS  BOOK!. 

of  the  refpective  kingdoms  of  Europe  took  the  appointment  infome 
degree  into  their  own  hands  ;  by  referving  to  themielves  the  right 
of  confirming  thefe  elections,  and  of  granting  inveftiture  of  the 
temporalties,  which  now  began  almoft  univerfally  to  be  annexed 
to  this  fpiritual  dignity  ;  without  which  confirmation  and  invefti- 
ture, the  elected  bimop  could  neither  be  confecrated,  nor  receive 
any  fecular  profits.  This  right  was  acknowleged  in  the  emperor 
Charlemagne,  A.  D.  773,  by  pope  Hadrian  I,  and  the  council  of 
Lateran  ',  and  univerfally  exercifed  by  other  chriftian  princes  :  but 
the  policy  of  the  court  of  Rome  at  the  fame  time  began  by  degrees 
to  exclude  the  laity  from  any  (hare  in  thefe  elections,  and  to  con- 
fine them  wholly  to  the  clergy,  which  at  length  was  completely 
effected  ;  the  mere  form  of  election  appearing  to  the  people  to  be 
a  thing  of  little  confequence,  while  the  crown  was  in  pofleffion  of 
an  abfolute  negative,  which  was  almoft  equivalent  to  a  direct  right 
of  nomination.  Hence  the  right  of  appointing  to  bifhopricks 
is  faid  to  have  been  in  the  crown  of  England  k  (as  well  as  other 
kingdoms  in  Europe)  even  in  the  Saxon  times,  becaufe  the  rights 
of  confirmation  and  inveftiture  were  in  effect  (though  not  in 
form)  a  right  of  complete  donation1.  But  when,  by  length  of 
time,  the  cuftom  of  making  elections  by  the  clergy  only  was  fully 
eftablifhed,  the  popes  began  to  except  to  the  ufual  method  of 
granting  thefe  inveftitures,  which  was  per  annulum  et  baculum,  by 
the  prince's  delivering  to  the  prelate  a  ring,  and  a  paftoral  ftaff  or 
crofier;  pretending,  that  this  was  an  encroachment  on  the  church's 
authority,  and  an  attempt  by  thefe  fymbols  to  confer  a  fpiritual 
jurifdiction  :  and  pope  Gregory  VII,  towards  the  dole  of  the 
eleventh  century,  published  a  bulle  of  excommunication  againft 
all  princes  who  mould  dare  to  confer  inveftitures,  and  all  prelates 
who  mould  venture  to  receive  them"1.  This  was  a  bold  ftep  to- 
wards effecting  the  plan  then  adopted  by  the  Roman  fee,  of  ren- 

s  Decret.  1 .  dijl.  63.  c.  22.  "  latum,  per  annulum  et  baculum  regis  curia  fro 

k  Palm.  28.  " fua  camplatentia  cenferttat,"  Pews  clerical 

1  "  Nulla  ekSio  praelatorum  (funt  iierba  et  monacbos  fuit  eletfia,  fed  eleftmi  a  rege  fof- 

"  Inrulpbi)  erat  mere  lilera  et  cc.ncnica;  fed  tulabnnt.     Selden.  Jan.  Angl.  l.\.   §.39. 

"  omnes  dignitatcs  tarn  epifcfptptap,  qv.am  ab-         m  Decret.z.  cauf,  16.  ya.  7.  c.  12  S;  13. 

dering 


Ch.  ii.  of    PERSONS.  379 

dering  the  clergy  intirely  independent  of  the  civil  authority  :  and 
long  and  eager  were  the  contefts  occafioned  by  this  difpute.  But 
at  length  when  the  emperor  Henry  V  agreed  to  remove  all  fufpi- 
cion  of  encroachment  on  the  fpiritual  character,  by  conferring  in- 
veftitures  for  the  future  per  fceptrwn  and  not  per  annulum  et  bacu- 
lum ;  and  when  the  kings  of  England  and  France  confented  alfo 
to  alter  the  form  in  their  kingdoms,  and  receive  only  homage 
from  the  birtiops  for  their  temporalties,  inflead  of  inverting  them 
by  the  ring  and  crofter;  the  court  of  Rome  found  it  prudent  to 
fufpend  for  a  while  it's  other  pretentious  ". 

THIS  conceiTion  was  obtained  from  king  Henry  the  firft  in 
England,  by  means  of  that  obftinate  and  arrogant  prelate,  arch- 
bifhop  Anfelm  ° :  but  king  John  (about  a  century  afterwards) 
in  order  to  obtain  the  protection  of  the  pope  againft  his  difcon- 
tented  barons,  was  prevailed  upon  to  give  up  by  a  charter,  to  all 
the  monasteries  and  cathedrals  in  the  kingdom,  the  free  right 
of  electing  their  prelates,  whether  abbots  or  bifhops  :  referving 
only  to  the  crown  the  cuftody  of  the  temporalties  during  the 
vacancy ;  the  form  of  granting  a  licence  to  elect,  (which  is  the 
original  of  our  conge  d'  ejlire]  on  refufal  whereof  the  electors 
might  proceed  without  it ;  and  the  right  of  approbation  after- 
wards, which  was  not  to  be  denied  without  a  reafonable  and 
lawful  caufep.  This  grant  was  expreffly  recognized  and  confirmed 
in  king  John's  magna  carta*,  and  was  again  eftablimed  by  ftatute 
25Edw.  III.  ft.  6.  §.3. 

Bu  T  by  ftatute  25  Hen.VIII.  c.  20.  the  antient  right  of  no- 
mination was,  in  effect,  reftored  to  the  crown:  it  being  enacted 
that,  at  every  future  avoidance  of  a  bifhoprick,  the  king  may 
fend  the  dean  and  chapter  his  ufual  licence  to  proceed  to  election  -, 
which  is  always  to  be  accompanied  with  a  letter  miffive  from  the 
king,  containing  the  name  of  the  perfon  whom  he  would  have 
them  elect :  and,  if  the  dean  and  chapter  delay  their  election  above 

n  Mod.  Un.  Hift.  xxv.  363.  xxix.  115.  P  M.  Paris.  A.D.  1214.   iRym./W.  198. 

0  M.  Paris.  A.D.  1107.  1  cap.  I.  edit.  Oxon.  1759. 

Z  z  2  twelve 


380  The    RIGHTS  BOOK  I. 

twelve  days,  the  nomination  {hall  devolve  to  the  king,  who  may 
by  letters  patent  appoint  fuch  perfon  as  he  pleafes.  This  election 
or  nomination,  if  it  be  of  a  bifhop,  muft  be  fignified  by  the  king's 
letters  patent  to  the  arch-biihop  of  the  province ;  if  it  be  of  an 
arch-bilhop,  to  the  other  arch-bimop  and  two  biihops,  or  to  four 
bifhops ;  requiring  them  to  confirm,  invert,  and  confecrate  the 
perfon  fo  elected ;  which  they  are  bound  to  perform  immediately, 
without  any  application  to  the  fee  of  Rome.  After  which  the 
bifhop  cleft  mail  fue  to  the  king  for  his  temporalties,  fhall  make 
oath  to  the  king  and  none  other,  and  mall  take  reftitution  of  his 
fecular  pofTeffions  out  of  the  king's  hands  only.  And  if  fuch  dean 
and  chapter  do  not  elect  in  the  manner  by  this  act  appointed,  or 
if  fuch  arch-bifhop  or  bifhop  do  refufe  to  confirm,  invert,  and 
confecrate  fuch  bifhop  elect,  they  fhall  incur  all  the  penalties  of 
a  praemimire. 

A  N  arch-biihop  is  the  chief  of  the  clergy  in  a  whole  province; 
and  has  the  inflection  of  the  biihops  of  that  province,  as  well  as 
of  the  inferior  clergy,  and  may  deprive  them  on  notorious  caufe r. 
The  arch-biihop  has  alfo  his  own  diocefe,  wherein  he  exercifes 
epifcopal  jurifdiction ;  as  in  his  province  he  exercifes  archiepif- 
copal.  As  arch-bifhop,  he,  upon  receipt  of  the  king's  writ,  calls 
the  bifhops  and  clergy  of  his  province  to  meet  in  convocation : 
but  without  the  king's  writ  he  cannot  afTemble  them s.  To  him 
all  appeals  are  made  from  inferior  jurifdictions  within  his  pro- 
vince ;  and,  as  an  appeal  lies  from  the  bifhops  in  perfon  to  him 
in  perfon,  fo  it  alfo  lies  from  the  confiftory  courts  of  each  diocefe 
to  his  archiepifcopal  court.  During  the  vacancy  of  any  fee  in  his 
province,  he  is  guardian  of  the  fpiritualties  thereof,  as  the  king 
is  of  the  temporalties;  and  he  executes  all  ecclefiaftical  jurifdic- 
tion therein.  If  an  archiepifcopal  fee  be  vacant,  the  dean  and 
chapter  are  the  fpiritual  guardians,  ever  fince  the  office  of  prior 
of  Canterbury  was  abolifhed  at  the  reformation  '.  The  arch-bifhop 
is  entitled  to  prefent  by  lapfe  to  all  the  ecclefiaftical  livings  in  the 

'  Lord  Raym.  541.  «  2  Roll.  Abr.  223. 

5  4  Inft.  322,323. 

difpofal 


Ch.n.  of    PERSONS.  381 

difpofal  of  his  diocefan  bifliops,  if  not  filled  within  fix  months. 
And  the  arch-bifliop  has  a  cuftomary  prerogative,  when  a  bifliop 
is  confecrated  by  him,  to  name  a  clerk  or  chaplain  of  his  own  to 
be  provided  for  by  fuch  fuffragan  bifliop ;  in  lieu  of  which  it  is 
now  ufual  for  the  bifliop  to  make  over  by  deed  to  the  arch-bifliop, 
his  executors  and  affigns,  the  next  prelentation  of  fuch  dignity  or 
benefice  in  the  biihop's  difpofal  within  that  fee,  as  the  arch-bifliop 
himfelf  (hall  choofe;  which  is  therefore  called  his  option  ".-  which 
options  are  only  binding  on  the  bifliop  himfelf  who  grants  them, 
and  not  his  fucceflbrs.  The  prerogative  itfelf  feems  to  be  derived 
from  the  legatine  power  formerly  annexed  by  the  popes  to  the 
metropolitan  of  Canterbury  w.  And  we  may  add,  that  the  papal 
claim  itfelf  (like  mofl  others  of  that  encroaching  fee)  was  proba- 
bly fet  up  in  imitation  of  the  imperial  prerogative  called  primae 
or  pritnariae  preces -,  whereby  the  emperor  exercifes,  and  hath  irn- 
memorially  exercifed x,  a  right  of  naming  to  the  firft  prebend  that 
becomes  vacant  after  his  accefllon  in  every  church  of  the  empire7. 
A  right,  that  was  alfo  exercifed  by  the  crown  of  England  in  the 
reign  of  Edward  I z  ;  and  which  probably  gave  rife  to  the  royal 
corodies,  which  were  mentioned  in  a  former  chapter a.  It  is  alfo 
the  privilege,  by  cuftom,  of  the  arch-bifliop  of  Canterbury,  to 
crown  the  kings  and  queens  of  this  kingdom.  And  he  hath  alfo 
by  the  ftatute  25  Hen. VIII.  c.  21.  the  power  of  granting  difpen- 
fations  in  any  cafe,  not  contrary  to  the  holy  fcriptures  and  the  law 
of  God,  where  the  pope  ufed  formerly  to  grant  them  :  which  is 
the  foundation  of  his  granting  fpecial  licences,  to  marry  at  any- 
place or  time,  to  hold  two  livings,  and  the  like  :  and  on  this 
alfo  is  founded  the  right  he  exercifes  of  conferring  degrees,  in: 
prejudice  of  the  two  univerfities b. 

u  Cowel's  interpret,  tit.  option.  dt  caetero  folvat ;    et  de  proxitna  ecclefia  wo*- 

*  Sherlock  of  options.  I.  catura   de   cullatiom  praeuuli    epi/copi,    quam 

x  Goldaft.  conjiit.  imper.  torn.  3.  fag.  406.  ipfe   Robertas   acceptaverit,    re/piciat.     Brev. 

y  Dufrefne.    V.  806.     Mod.  Ujn.   Hift.  nEdw.  '.      3  Pryn.  1264. 

xxix.  5.  a   ch.  8.  pag.  283. 

z  Rex,    &c,   falutem,      Scribatis    eplfccpo  b  See    the     bifliop    of    Chefler's    cafe. 

Karl,  quod — Roberto  de  Icard pcnfionem  Juam,  Oxon.  l~p.l, 

quam  ad  preces  regts  praedifio  Roberto  concept, 

THE 


382  The    RIGHTS  BOOK!. 

THE  power  and  authority  of  a  bifhop,  befides  the  adminiftra- 
tion  of  certain  holy  ordinances  peculiar  to  that  facred  order,  con- 
lift  principally  in  infpecling  the  manners  of  the  people  and  clergy, 
and  punifhing  them,  in  order  to  reformation,  by  ecclefiaftical  cen- 
fures.  To  this  purpofe  he  has  feveral  courts  under  him,  and  may 
vifit  at  pleafure  every  part  of  his  diocefe.  His  chancellor  is  ap- 
pointed to  hold  his  courts  for  him,  and  to  afiift  him  in  matters  of 
ecclefiaftical  law ;  who,  as  well  as  all  other  ecclefiaftical  officers, 
if  lay  or  married,  muft  be  a  doctor  of  the  civil  law,  fo  created  in 
fome  univerfity  c.  It  is  alfo  the  bufinefs  of  a  bifhop  to  inflitute, 
and  to  direct  induction,  to  all  ecclefiaftical  livings  in  his  diocefe. 

ARCHBISHOPRIC  KS  and  bifhopricks  may  become  void  by 
death,  deprivation  for  any  very  grofs  and  notorious  crime,  and 
alfo  by  resignation.  All  refignations  muft  be  made  to  fome  fupe- 
rior d.  Therefore  a  bifhop  muft  refign  to  his  metropolitan  ;  but 
the  arch-bifhop  can  refign  to  none  but  the  king  himfelf. 

II.  A  DEAN  and  chapter  are  the  council  of  the  bifhop,  to 
affift  him  with  their  advice  in  affairs  of  religion,  and  alfo  in  the 
temporal  concerns  of  his  fee e.  When  the  reft  of  the  clergy  were 
fettled  in  the  feveral  parifhes  of  each  diocefe  ( as  hath  formerly  f 
been  mentioned)  thefe  were  referved  for  the  celebration  of  divine 
fervice  in  the  bimop's  own  cathedral;  and  the  chief  of  them, 
who  prefided  over  the  reft,  obtained  the  name  of  deeanus  or  dean, 
being  probably  at  firft  appointed  to  fuperintend  ten  canons  or 
prebendaries. 

ALL  antient  deans  are  elected  by  the  chapter,  by  conge  d'ejlire 
from  the  king,  and  letters  mifTive  of  recommendation ;  in  the 
fame  manner  as  bilhops  :  but  in  thofe  chapters,  that  were  found- 
ed by  Henry  VIII  out  of  the  fpoils  of  the  diflblved  monafteries, 
the  deanery  is  donative,  and  the  inftallation  merely  by  the  king's 

c  Stat.  37  Hen.VIII.  c.  17.  c  3  Rep.  75.    Co.  Litt.  103.  300. 

d  Gibf.  cod.  822.  f  pag.  112,  113. 

letters 


Ch.  n.  of    PERSONS.  383 

letters  patent6.  The  chapter,  confifting  of  canons  or  prebenda- 
ries, are  ibmctimes  appointed  by  the  king,  fometimes  by  the 
bifhop,  and  fometimes  elected  by  each  other. 

THE  dean  and  chapter  are,  as  was  before  obferved,  the  no- 
minal electors  of  a  bifliop.  The  bifhop  is  their  ordinary  and  im- 
mediate fuperior ;  and  has,  generally  fpeaking,  the  power  of  vifit- 
ing  them,  and  correcting  their  excelles  and  enormities.  They 
had  alfo  a  check  on  the  bilhop  at  common  law  :  for  till  the  ftatute 
32  Hen. VIII.  c.  28.  his  grant  or  leafe  would  not  have  bound  hi& 
fucceflbrs,  unlefs  confirmed  by  the  dean  and  chapter11. 

DEANERIES  and  prebends  may  become  void,  like  a  bifliop- 
rick,  by  death,  by  deprivation,  or  by  resignation  to  either  the 
king  or  the  bifliop j.  Alfo  I  may  here  mention,  once  for  all,  that 
if  a  dean,  prebendary,  or  other  fpiritual  perfon  be  made  a  bifliop, 
all  the  preferments  of  which  he  was  before  ponefTed  are  void  ;  and 
the  king  may  prefent  to  them  in  right  of  his  prerogative  royal.  But 
they  are  not  void  by  the  election,  but  only  by  the  confecration  '. 

III.  AN  arch-deacon  hath  an  ecclefiaftical  jurifdiclion,  imme- 
diately fubordinate  to  the  bifliop,  throughout  the  whole  of  his 
diocefe,  or  in  fome  particular  part  of  it.    He  is  ufually  appointed 
by  the  bifhop  himlelf ;    and  hath  a  kind  of  epifcopal  authority, 
originally  derived  from  the  bifhop,  but  now  independent  and  dif- 
tindt  from  his  k.     He  therefore  vifits  the  clergy ;  and  has  his  fe- 
parate  court  for  punifhment  of  offenders  by  fpiritual  cenfures,  and 
for  hearing  all  other  caufes  of  eccleiiaftical  cognizance, 

IV.  THE  rural  deans  are  very  antient  officers  of  the  church  V 
but  almofr.  grown  out  of  ufe;   though  their  deaneries  flill  fubfift 
as  an  ecclefiaftical  divifion  of  the  diocefe,  or  archdeaconry.    They 
feem  to  have  been  deputies  of  the  bifliop,  planted  all  round  his 

%  Gibf.  cod.  173.  '  2  Roll.  Abr.  352.     Salk.  137. 

h  Co.  Litt.  103.  k    i  Burn.  eccl.  law.  68,  69. 

'  Plowd.  498.  '  Kennet.  par.  antiq.  633. 

dioceiej. 


384  tte    RIGHTS  BOOK!. 

diocefe,  the  better  to  infpecl  the  conduct  of  the  parochial  clergy, 
and  therefore  armed  with  an  inferior  degree  of  judicial  and  co- 
ercive authority"1. 

V.  TH  E  next,  and  indeed  the  moft  numerous,  order  of  men 
in  the  fyftem  of  ecclefiaftical  polity,  are  the  parfons  and  vicars  of 
churches :  in  treating  of  whom  I  lhall  firft  mark  out  the  diflinc- 
tion  between  them  ;  mail  next  obferve  the  method  by  which  one 
may  become  a  parfon  or  vicar;  mail  then  briefly  touch  upon  their 
rights  and  duties  j  and  mall,  laftly,  mew  how  one  may  ceafe  to 
be  either. 

A  PARSON,  perfona  eccle/iae,  is  one  that  hath  full  poflemon 
of  all  the  rights  of  a  parochial  church.  He  is  called  parfon,  per- 
fona, becaufe  by  his  perfon  the  church,  which  is  an  invifible  body, 
is  reprefented  ;  and  he  is  in  himfelf  a  body  corporate,  in  order 
to  protect  and  defend  the  rights  of  the  church  (which  he  perfo- 
nates)  by  a  perpetual  fucceffion n.  He  is  fometirnes  called  the 
redtor,  or  governor,  of  the  church  :  but  the  appellation  of  par- 
fon, (however  it  may  be  depreciated  by  familiar,  clownim,  and 
indifcriminate  ufe)  is  the  moft  legal,  moft  beneficial,  and  mofl 
honourable  title  that  a  parifli  prieft  can  enjoy ;  becaufe  fuch  a 
one,  ( fir  Edward  Coke  observes )  and  he  only,  is  faid  vicem  feu 
perfonam  ecclefiae  gerere.  A  parfon  has,  during  his  life,  the  free- 
hold in  himfelf  of  the  parfonage  houfe,  the  glebe,  the  tithes,  and 
other  dues.  But  thefe  are  fometirnes  appropriated;  that  is  to  fay, 
the  benefice  is  perpetually  annexed  to  fome  fpiritual  corporation, 
either  fole  or  aggregate,  being  the  patron  of  the  living  j  whom 
the  law  efteems  equally  capable  of  providing  for  the  fervice  of  the 
church,  as  any  {ingle  private  clergyman.  This  contrivance  feems 
to  have  fprung  from  the  policy  of  the  monadic  orders,  who  have 
never  been  deficient  in  fubtile  inventions  for  the  increafe  of  their 
own  power  and  emoluments.  At  the  firft  eftablifhment  of  parochial 
clergy,  the  tithes  of  the  parilh  were  diftributed  in  a  fourfold  di- 
villon;  one  for  the  ufe  of  the  bifhop,  another  for  maintaining 

m  Gibf.  cod.  972.  "  Co.  Litt.  300. 

the 


Ch.  ii,  of   PERSONS.  385 

the  fabric  of  the  church,  a  third  for  the  poor,  and  the  fourth 
to  provide  for  the  incumbent.  When  the  fees  of  the  bifhops  be- 
came otherwife  amply  endowed,  they  were  prohibited  from  de- 
manding their  ufual  mare  of  thefe  tithes,  and  the  diviiion  was 
into  three  parts  only.  And  hence  it  was  inferred  by  the  monaf- 
teries,  that  a  fmall  part  was  fufficient  for  the  officiating  prieft, 
and  that  the  remainder  might  well  be  applied  to  the  ufe  of  their 
own  fraternities,  (the  endowment  of  which  was  conftrued  to  be 
a  work  of  the  moft  exalted  piety)  fubject  to  the  burthen  of  re- 
pairing the  church  and  providing  for  it's  conftant  fupply.  And 
therefore  they  begged  and  bought,  for  maffes  and  obits,  and  fome- 
times  even  for  money,  all  the  advowfons  within  their  reach,  and 
then  appropriated  the  benefices  to  the  ufe  of  their  own  corporation. 
But,  in  order  to  complete  fuch  appropriation  effectually,  the  king's 
licence,  and  confent  of  the  bimop,  muft  firft  be  obtained ;  be- 
caufe  both  the  king  and  the  bifhop  may  fometime  or  other  have 
an  intereft,  by  lapfe,  in  the  prefentation  to  the  benefice ;  which 
can  never  happen  if  it  be  appropriated  to  the  ufe  of  a  corporation, 
which  never  dies :  and  alib  becaufe  the  law  repofes  a  confidence 
in  them,  that  they  will  not  confent  to  any  thing  that  mail  be  to 
the  prejudice  of  the  church.  The  confent  of  the  patron  alfo  is 
neceffarily  implied,  becaufe  (as  was  before  obferved)  the  appro- 
priation can  be  originally  made  to  none,  but  to  fuch  fpiritual  cor- 
poration, as  is  alfo  the  patron  of  the  church  ;  the  whole  being 
indeed  nothing  elfe,  but  an  allowance  for  the  patrons  to  retain 
the  tithes  and  glebe  in  their  own  hands,  without  prefenting  any 
clerk,  they  themfelves  undertaking  to  provide  for  the  fervice  of 
the  church  °.  When  the  appropriation  is  thus  made,  the  appro- 
priators  and  their  fucceflbrs  are  perpetual  parfons  of  the  church ; 
and  muft  fue  and  be  fued,  in  all  matters  concerning  the  rights  of 
the  church,  by  the  name  of  parfons p. 

THIS  appropriation  may  be  fevered,  and  the  church  become 
difappropriate,  two  ways  :  as,  firft,  if  the  patron  or  appropriator 
preferits  a  clerk,  who  is  instituted  and  inducted  to  the  parfonage : 

0  Plcnvd.  496 — 500.  t  Hob.  307. 

A  a  a  for 


386  The    RIGHTS  BOOK!. 

for  the  incumbent  fo  inftituted  and  inducted  is  to  all  intents  and 
purpofes  complete  parfon ;  and  the  appropriation,  being  once  fe- 
vered, can  never  be  re-united  again,  unlefs  by  repetition  of  the 
fame  folemnities  q.  And  when  the  clerk  fo  prefented  is  diftindt 
from  the  vicar,  the  rectory  thus  veiled  in  him  becomes  what  is 
called  a  Jine-cure ;  becaufe  he  hath  no  cure  of  fouls,  having  a 
vicar  under  him  to  whom  that  cure  is  committed r.  Alfo,  if  the 
corporation  which  has  the  appropriation  is  diilolved,  the  parfon- 
age  becomes  difappropriate  at  common  law ;  becaufe  die  perpe- 
tuity of  perfon  is  gone,  which  is  necellary  to  fupport  the  appro- 
priation. 

I  N  this  manner,  and  fubjedt  to  thefe  conditions,  may  appro- 
priations be  made  at  this  day  :  and  thus  were  moft,  if  not  all,  of 
the  appropriations  at  prefent  exifling  originally  made ;  being  an- 
nexed to  bimopricks,  prebends,  religious  houfes,  nay,  even  to 
nunneries,  and  certain  military  orders,  all  of  which  were  fpiri- 
tual  corporations.  At  the  diflolution  of  monafteries  by  flatutes 
27  Hen. VIII.  c.  28.  and  31  Hen. VIII.  c.i3-  the  appropriations 
of  the  feveral  parfonages,  which  belonged  to  thofe  refpeclive  re- 
ligious houfes,  (amounting  to  more  than  one  third  of  all  the  pa- 
rilhes  in  England  s)  would  have  been  by  the  rules  of  the  common 
law  difappropriated ;  had  not  a  claufe  in  thofe  ftatutes  intervened, 
to  give  them  to  the  king  in  as  ample  a  manner  as  the  abbots,  &c, 
formerly  held  the  fame,  at  the  time  of  their  diffolution.  This, 
though  perhaps  fcarcely  defenlible,  was  not  without  example ; 
for  the  fame  was  done  in  former  reigns,  when  the  alien  priories, 
(that  is,  fuch  as  were  rilled  by  foreigners  only)  were  diffolved 
and  given  to  the  crown '.  And  from  thefe  two  roots  have  fprung 
all  the  lay  appropriations  or  fecular  parfonages,  which  we  now 
fee  in  the  kingdom ;  they  having  been  afterwards  granted  out 
from  time  to  time  by  the  crown  u. 

1   Co,  Litt.  46.  l  2  Inft,  584. 

'  Sine-cures    might  alfo  be  created    by  u  Sir  H.  Spelman  (of  tithes,   0.29.)  fays 

other  means.     2  Burn.  eccl.  law.  347.  thefe  are  now  called  impropriations,  as  be- 

s  Seld.    review    of  tith.    0.9.      Spelm.  ing  improperly  in  the  hands  of  laymen. 
Apology.  35. 

THESE 


Ch.  ii.  ^PERSONS.  387 

THESE  appropriating  corporations,  or  religious  houfes,  were 
wont  to  depute  one  of  their  own  body  to  perform  divine  fervice, 
and  adminifter  the  facraments,  in  thofe  parifhes  of  which  the  fo- 
ciety  was  thus  the  parfon.  This  officiating  minifter  was  in  reality 
no  more  than  a  curate,  deputy,  or  vicegerent  of  the  appropriator, 
and  therefore  called  vicarius,  or  vicar.  His  ftipend  was  at  the 
difcretion  of  the  appropriator,  who  was  however  bound  of  com- 
mon right  to  find  fomebody,  qui  illi  de  temporalibus,  epifcopo  de 
fpiritualibus,  debeat  refpondere  w.  But  this  was  done  in  fo  fcanda- 
lous  a  manner,  and  the  parimes  fuffered  fo  much  by  the  neglect 
of  the  appropriators,  that  the  legiflature  was  forced  to  interpofe : 
and  accordingly  it  is  enadted  by  ftatute  i5Ric.  II.  c.  6.  that  in 
all  appropriations  of  churches,  the  diocefan  bifhop  fhall  ordain 
(in  proportion  to  the  value  of  the  church)  a  competent  fum  to 
be  diftributed  among  the  poor  parishioners  annually  j  and  that  the 
vicarage  mail  be  fufficiently  endowed.  It  feems  the  parifh  were 
frequently  ftifferers,  not  only  by  the  want  of  divine  fervice,  but 
allb  by  withholding  thofe  alms,  for  which,  among  other  purpo- 
fes,  the  payment  of  tithes  was  originally  impofed :  and  there- 
fore in  this  adl  a  penlion  is  directed  to  be  diftributed  among  the 
poor  parochians,  as  well  as  a  fufficient  ftipend  to  the  vicar.  •  But 
he,  being  liable  to  be  removed  at  the  pleafure  of  the  appropria- 
tor, was  not  likely  to  infift  too  rigidly  on  the  legal  fufficiency  of 
the  ftipend  :  and  therefore  by  ftatute  4 Hen.  IV.  c.  12.  it  is  or- 
dained, that  the  vicar  fhall  be  a  fecular  perfon,  not  a  member  of 
any  religious  houfe;  that  he  fhall  be  vicar  perpetual,  not  remove- 
able  at  the  caprice  of  the  monaftery ;  and  that  he  fhall  be  ca- 
nonically  inftituted  and  indudted,  and  be  fufficiently  endowed,  at 
the  difcretion  of  the  ordinary,  for  thefe  three  exprefs  purpofes, 
to  do  divine  fervice,  to  inform  the  people,  and  to  keep  hofpita- 
lity.  The  endowments  in  confequence  of  thefe  ftatutes  have 
ufually  been  by  a  portion  of  the  glebe,  or  land,  belonging  to  the 
parfonage,  and  a  particular  fhare  of  the  tithes,  which  the  appro- 
priators found  it  moft  troublefome  to  collecl,  and  which  are 

w  Seld.  tith.  c.  u.i. 

A  a  a  2  there- 


3 8 8  77oe    RIGHTS  BOOK!. 

therefore  generally  called  privy,  fmall,  or  vicarial,  tithes ;  the 
greater,  or  predial,  tithes  being  ftill  referved  to  their  own  ufe. 
But  one  and  the  fame  rule  was  not  obferved  in  the  endowment  of 
all  vicarages.  Hence  fome  are  more  liberally,  and  fome  more 
fcantily,  endowed  ;  and  hence  many  things,  as  wood  in  par- 
ticular, is  in  fome  countries  a  rectorial,  and  in  fome  a  vicarial 
tithe. 

THE  distinction  therefore  of  a  parfon  and  vicar  is  this  ;  that 
the  parfon  has  for  the  moft  part  the  whole  right  to  all  the  eccle- 
fiaftical  dues  in  his  parifli  •,  but  a  vicar  has  generally  an  appro- 
priator  over  him,  entitled  to  the  beft  part  of  the  profits,  to  whom 
he  is  in  effect  perpetual  curate,  with  a  ftanding  falary.  Though 
in  fome  places  the  vicarage  has  been  confiderably  augmented  by 
a  large  {hare  of  the  great  tithes ;  which  augmentations  were 
greatly  affifted  by  the  Statute  29  Car.  II.  c.  8.  enacted  in  favour 
of  poor  vicars  and  curates,  which  rendered  fuch  temporary  aug- 
mentations (when  made  by  the  appropriators)  perpetual. 

THE  method  of  becoming  a  parfon  or  vicar  is  much  the  fame. 
To  both  there  are  four  requifites  neceSTary  :  holy  orders  ;  prefen- 
tation  ;  institution  ;  and  induction.  The  method  of  conferring 
the  holy  orders  of  deacon  and  prieft,  according  to  the  liturgy  and 
canons  %  is  foreign  to  the  purpofe  of  thefe  commentaries ;  any 
farther  than  as  they  are  neceffary  requisites  to  make  a  complete 
parfon  or  vicar.  By  common  law  a  deacon,  of  any  age,  might 
be  instituted  and  inducted  to  a  parfonage  or  vicarage  :  but  it  was 
ordained  by  Statute  i^Eliz.  c.  12.  that  no  perfon  under  twenty 
three  years  of  age,  and  in  deacon's  orders,  mould  be  prefented  to 
any  benefice  with  cure  ;  and  if  he  were  not  ordained  prieSt  within 
one  year  after  his  induction,  he  mould  be  ipfo  fatfo  deprived  : 
and  now,  by  Statute  13  &  14  Car.  II.  c.  4.  no  perfon  is  capable 
to  be  admitted  to  any  benefice,  unlefs  he  hath  been  firSt  ordained 
a  pried ;  and  then  he  is,  in  the  language  of  the  law,  a  clerk  in 
orders.  But  if  he  obtains  orders,  or  a  licence  to  preach,  by 

1  See  2  Burn.  eccl.  law.  103. 

money 


Ch.n.  of    PERSONS.  389 

money  or  corrupt  practices  (which  feems  to  be  the  true,  though 
not  the  common  notion  of  fimony)  the  perfon  giving  fuch  orders 
forfeits  y  40 /.  and  the  perfon  receiving  io/.  and  is  incapable  of 
any  ecclefiaftical  preferment  for  feven  years  afterwards. 

ANY  clerk  may  be  prefented2  to  a  parfonage  or  vicarage;  that 
is,  the  patron,  to  whom  the  advowfon  of  the  church  belongs, 
may  offer  his  clerk  to  the  bilhop.of  the  diocefe  to  be  inflituted. 
Of  advowfons,  or  the  right  of  prefentation,  being  a  fpecies  of 
private  property,  we  fhall  find  a  more  convenient  place  to  treat 
in  the  fecond  part  of  thefe  commentaries.  But  when  a  clerk  is 
prefented,  the  bifhop  may  refufe  him  upon  many  accounts.  As, 
I.  If  the  patron  is  excommunicated,  and  remains  in  contempt 
forty  daysa.  Or,  2.  If  the  clerk  be  unfit b:  which  unfitnefs  is  of 
feveral  kinds.  Firft,  with  regard  to  his  perfon  j  as  if  he  be  a 
baftard,  an  outlaw,  an  excommunicate,  an  alien,  under  age,  or 
the  like  c.  Next,  with  regard  to  his  faith  or  morals  ;  as  for  any 
particular  herefy,  or  vice  that  is  malum  in  fe  :  but  if  the  bifhop 
alleges  only  in  generals,  as  that  he  is  fchiftnatictis  inveteratus,  or 
objects  a  fault  that  is  malum  prohibition  merely,  as  haunting  ta<- 
verns,  playing  at  unlawful  games,  or  the  like ;  it  is  not  good 
caufe  of  refufal d.  Or,  laftly,  the  clerk  may  be  unfit  to  difcharge 
the  pafloral  office  for  want  of  learning.  In  any  of  which  cafes 
the  bifhop  may  refufe  the  clerk.  In  cafe  the  refufal  is  for  herefy, 
fchifm,  inability  of  learning,  or  other  matter  of  ecclefiaftical 
cognizance,  there  the  bifhop  mufl  give  notice  to  the  patron  of 
fuch  his  caufe  of  refufal,  who,  being  ufually  a  layman,  is  not 
fuppofed  to  have  knowlege  of  it ;  elfe  he  cannot  prefent  by  lapfe  :, 
but  if  the  caufe  be  temporal,  there  he  is  not  bound  to  give 
notice e. 

i  Stat.  31  Eliz.  c.  6.  b  Glanv.  /.  13.  c.  20. 

z  A  layman  may  alfo  be  prefented;  but         c  2  Roll.  Abr.  356.    2  Inft.  632.     Stat, 

lie  muft  take  prieft's  orders  before  his  ad-  3  Ric.  II.  0.3.    7  Ric.  II.  c.  12. 
miflion.     I  Burn.  103.  d  5  Rep.  58. 

1  2  Roll.  Abr.  355.  e  2lnil.632. 

IF 


390  The    RIGHTS  BOOK!. 

I  F  an  action  at  law  be  brought  by  the  patron  againft  the 
biShop,  for  refufing  his  clerk,  the  biShop  muft  aSfign  the  caufe. 
If  the  caufe  be  of  a  temporal  nature  and  the  fact  admitted,  (as, 
for  inftance,  outlawry)  the  judges  of  the  king's  courts  muft  de- 
termine it's  validity,  or,  whether  it  be  fufficient  caufe  of  refufal : 
but  if  the  fact  be  denied,  it  muft  be  determined  by  a  jury.  If  the 
caufe  be  of  a  fpiritual  nature,  (as,  herefy,  particularly  alleged ) 
the  fact  if  denied  mall  alfo  be  determined  by  a  jury  ;  and  if  the 
facl  be  admitted  or  found,  the  court  upon  conlultation  and  advice 
of  learned  divines  Shall  decide  it's  fufficiency f.  If  the  caufe  be 
want  of  learning,  the  bifliop  need  not  fpecify  in  what  points  the 
clerk  is  deficient,  but  only  allege  that  he  is  deficient  * :  for  the 
Statute  9  Edw.  II.  ft.  i.  c.  13.  is  exprefs,  that  the  examination  of 
the  fitnefs  of  a  perfon  prefented  to  a  benefice  belongs  to  the  ec- 
clefiaftical  judge.  But  becaufe  it  would  be  nugatory  in  this  cafe 
to  demand  the  reafon  of  refufal  from  the  ordinary,  if  the  patron 
were  bound  to  abide  by  his  determination,  who  has  already  pro- 
nounced his  clerk  unfit ;  therefore  if  the  bifhop  returns  the  clerk 
to  be  minus  fufficiens  in  literatura,  the  court  mall  write  to  the  me- 
tropolitan ;  to  reexamine  him,  and  certify  his  qualifications  ; 
which  certificate  of  the  arch-biShop  is  final*1. 

IF  the  bifhop  hath  no  objections,  but  admits  the  patron's  pre- 
fentation,  the  clerk  fo  admitted  is  next  to  be  instituted  by  him  ; 
which  is  a  kind  of  inveftiture  of  the  fpiritual  part  of  the  bene- 
fice :  for  by  institution  the  care  of  the  fouls  of  the  pariSh  is  com- 
mitted to  the  charge  of  the  clerk.  When  a  vicar  is  instituted,  he 
(befides  the  ufual  forms)  takes,  if  required  by  the  biShop,  an  oath 
of  perpetual  refidence  ;  for  the  maxim  of  law  is,  that  vicarius  non 
habet  iiicarium:  and  as  the  non-refidence  of  the  appropriators  was 
the  caufe  of  the  perpetual  establishment  of  vicarages,  the  law 
judges  it  very  improper  for  them  to  defeat  the  end  of  their  con- 
stitution, and  by  abfence  to  create  the  very  mifchiefs  which  they 

f  2lnft.  632.  b   2  Infl.632. 

s  5  Rep.  58.     3  Lev.  313. 

were 


Ch.  ii.  of   PERSONS.  391 

were  appointed  to  remedy  :  efpecially  as,  if  any  profits  are  to 
arife  from  putting  in  a  curate  and  living  at  a  diftance  from  the 
parim,  the  appropriator,  who  is  the  real  paribn,  has  undoubtedly 
the  elder  title  to  them.  When  the  ordinary  is  alfo  the  patron, 
and  confers  the  living,  the  prefentation  and  institution  are  one  and 
the  fame  aft,  and  are  called  a  collation  to  a  benefice.  By  infti- 
tution  or  collation  the  church  is  full,  fo  that  there  can  be  no  frefh 
prefentation  till  another  vacancy,  at  leaft  in  the  cafe  of  a  common 
patron ;  but  &e  church  is  not  full  againit  the  king,  till  induction : 
nay,  even  if  a  clerk  is  instituted  upon  the  king's  prelentation,  the 
crown  may  revoke  it>before  induction,  and  prefent  another  clerk'. 
Upon  inftitution  alfo  the  clerk  may  enter  on  the  parfonage  houfe 
and  glebe,  and  take  the  tithes  ;  but  he  cannot  grant  or  let  them, 
or  bring  an  action  for  them,  till  induction. 

INDUCTION  is  performed  by  a  mandate  from  the  bifhop  to 
the  arch-deacon,  who  ufually  ifTues  out  a  precept  to  other  clergy- 
men to  perform  it  for  him.  It  is  done  by  giving  the  clerk  corpo- 
ral pofleffion  of  the  church,  as  by  holding  the  ring  of  the  door,, 
tolling  a  bell,  or  the  like  ;  and  is  a  form  required  b'y  law,  with 
intent  to  give  all  the  parifhioners  due  notice,  and  fufficient  cer- 
tainty of  their  new  minifter,  to  whom  their  tithes  are  to  be  paid. 
This  therefore  is  the  inveftiture  of  the  temporal  part  of  the  bene- 
fice, as  inftitution  is  of  the  fpiritual.  And  when  a  clerk  is  thus 
prefented,  inftituted,  and  inducted  into  a  rectory,  he  is  then,  and. 
not  before,  in  full  and  complete  poffeffion,  and  is  called  in  law 
perfona  imperfonata,  or  parfon  imparfonee  k. 

TH  E  rights  of  a  parfon  or  vicar,  in  his  tithes  and  ecclefiaftical 
dues,  fall  more  properly  under  the  fecond  book  of  thefe  commen- 
taries :  and  as  to  his  duties,  they  are  principally  of  ecclefiaftical. 
cognizance  ;  thofe  only  excepted  which  are  laid  upon  him  by 
ftatute.  And  thofe  are  indeed  fo  numerous,  that  it  is  impracticable 
to  recite  them  here  with  any  tolerable  concifenefs  or  accuracy. 
Some  of  them  we  may  remark,  as  they  arife  in  the  progrefs  of. 

1  Co.  Lite.  344.  k  Ibid.  300. 

our; 


392  The    RIGHTS  BOOK!. 

our  enquiries,  but  for  the  reft  I  muft  refer  myfelf  to  fuch  authors 
as  have  compiled  treadles  expreilly  upon  this  fubject '.  I  (hall 
only  juft  mention  the  article  of  refidence,  upon  the  fuppofition  of 
which  the  law  doth  ftile  every  parochial  minifter  an  incumbent. 
By  ftatute  21  Hen.VIII.  c.  13.  perfons  wilfully  abfenting  them- 
felves  from  their  benefices,  for  one  month  together,  or  two  months 
in  the  year,  incur  a  penalty  of  5  /.  to  the  king,  and  5  /.  to  any 
peribn  that  will  fue  for  the  fame  :  except  chaplains  to  the  king, 
or  others  therein  mentioned  m,  during  their  attendance  in  the 
houfliold  of  fuch  as  retain  them  :  and  alfo  except"  all  heads  of 
houfes,  magistrates,  and  profeffors  in  the  univerfities,  and  all  flu- 
dents  under  forty  years  of  age  refiding  there,  bona  Jide,  for  ftudy. 
Legal  refidence  is  not  only  in  the  parifh,  but  alfo  in  the  parfon- 
age  houfe  :  for  it  hath  been  refolved  °,  that  the  ftatute  intended 
refidence,  not  only  for  ferving  the  cure,  and  for  hofpitality ;  but 
alfo  for  maintaining  the  houfe,  that  the  fucceflbr  alfo  may  keep 
hofpitality  there. 

WE  have  feen  that  there  is  but  one  way,  whereby  one  may 
become  a  parfon  or  vicar  :  there  are  many  ways,  by  which  one 
may  ceafe  to  be  fo.  i.  By  death.  2.  By  ceffion,  in  taking  an- 
other benefice.  For  by  ftatute  21  Hen. VIII.  c.  13.  if  any  one 
having  a  benefice  of  8  /.  per  annum,  or  upwards,  in  the  king's 
books,  (according  to  the  prefent  valuation p,)  accepts  any  other, 
the  firfl  fhall  be  adjudged  void  ;  unlefs  he  obtains  a  difpenfation ; 
which  no  one  is  entitled  to  have,  but  the  chaplains  of  the  king 
and  others  therein  mentioned,  the  brethren  and  fons  of  lords  and 
knights,  and  doctors  and  bachelors  of  divinity  and  law,  admitted 
by  the  univerjities  of  this  realm.  And  a  vacancy  thus  made,  for 
want  of  a  difpenfation,  is  called  ceffion.  3.  By  confecration;  for, 
as  was  mentioned  before,  when  a  clerk  is  promoted  to  a  bifhop- 
rick,  all  his  other  preferments  are  void  the  inftant  that  he  is  con- 

1  Thefe  are  very  numerous:    but   there  m  Stat.  25  Hen.VIII.  c.  16.   33  Hen. VIII. 

are  only  two,  which  can  be  relied  on  with  c.  28. 

any  degree  of  certainty  ;    bifhop  Gibfon's  "  Stat.  28  Hen.VIII.  c.  13. 

codex,  and  Dr  Burn's  ecclefiaftical  law.  °  6  Rep.  21. 

p  Cro.  Car.  456.  fecrated. 


Ch.n.  of    PERSONS.  393 

fecrated.  But  there  is  a  method,  by  the  favour  of  the  crown,  of 
holding  fuch  livings  in  commendam,  Commenda,  or  ecclefia  commen- 
data,  is  a  living  commended  by  the  crown  to  the  care  of  a  clerk, 
to  hold  till  a  proper  paftor  is  provided  for  it.  This  may  be  tem- 
porary, for  one,  two,  or  three  years,  or  perpetual ;  being  a  kind 
of  diipenfation  to  avoid  the  vacancy  of  the  living,  and  is  called  a 
commenda  retinere.  There  is  alfo  a  commenda  rectpere,  which  is  to 
take  a  benefice  de  novo,  in  the  bifhop's  own  gift,  or  the  gift  of 
fome  other  patron  confenting  to  the  fame  j  and  this  is  the  fame 
to  him  as  institution  and  induction  are  to  another  clerk q.  4.  By 
refignation.  But  this  is  of  no  avail,  till  accepted  by  the  ordinary  ; 
into  whofe  hands  the  refignation  muft  be  made  r.  5.  By  depriva- 
tion, either  by  canonical  cenfures,  of  which  I  am  not  to  fpeak  ;  or 
in  purfuance  of  divers  penal  flatutes,  which  declare  the  benefice 
void,  for  fome  nonfeafance  or  neglect,  or  elfe  fome  malefeafance 
or  crime.  As,  forfimony5;  for  maintaining  any  doctrine  in  dero- 
gation of  the  king's  fupremacy,  or  of  the  thirty  nine  articles,  or 
of  the  book  of  common-prayer l ;  for  neglecting  after  inftitution 
to  read  the  articles  in  the  church,  or  make  the  declarations  againfl 
popery,  or  take  the  abjuration  oathu;  for  ufing  any  other  form 
of  prayer  than  the  liturgy  of  the  church  of  England  w ;  or  for 
abfenting  himfelf  fixty  days  in  one  year  from  a  benefice  belong- 
ing to  a  popifh  patron,  to  which  the  clerk  was  prefented  by  either 
of  the  univerfities  x ;  in  all  which  and  fimilar  cafes y  the  benefice 
is  ipfofaffo  void,  without  any  formal  fentence  of  deprivation. 

VI.  A  CURATE  is  the  loweft  degree  in  the  church ;  being 
in  the  fame  ftate  that  a  vicar  was  formerly,  an  officiating  tem- 
porary minifter,  inftead  of  the  proper  incumbent.  Though  there 
are  what  are  called  perpetual  curacies,  where  all  the  tithes  are 
appropriated,  and  no  vicarage  endowed,  (being  for  fome  particular 

«  Hob.  144.  •  Stat.  13  Eliz.  c.  12.     14  Car.  II.  0.4. 

'  Cro.  Jac.  198.  i  Geo.  I.  c.  6. 

3  Stat.  31  Eliz.  c.  6.     12  Ann.c.  12.  w  Stat.  i  Eliz.  c.  2. 

'  Stat.  i  Eliz.  c.  i  &  2.     13  Eliz.  c.  12.         *  Stat.  i  W.  &  M.  c.  26. 

y  6  Rep.  29,  30. 

B  b  b  reafons2 


394  The    RIGHTS  BOOK!. 

reafons z  exempted  from  the  ftatute  of  Hen.  IV)  but,  inftead  there- 
of, fuch  perpetual  curate  is  appointed  by  the  appropriator.  With 
regard  to  the  other  fpecies  of  curates,  they  are  the  objects  of  fome 
particular  flatutes,  which  ordain,  that  fuch  as  ferve  a  church  during 
it's  vacancy  mall  be  paid  fuch  ftipend  as  the  ordinary  thinks  rea- 
fonable,  out  of  the  profits  of  the  vacancy;  or,  if  that  be  not 
fufficient,  by  the  fucceflbr  within  fourteen  days  after  he  takes 
pofTefTion  a :  and  that,  if  any  rector  or  vicar  nominates  a  curate 
to  the  ordinary  to  be  licenced,  the  ordinary  mall  fettle  his  flipend 
under  his  hand  and  feal,  not  exceeding  507.  per  annum,  nor  lefs 
than  20 /.  and  on  failure  of  payment  may  fequefter  the  profits  of 
the  benefice  b. 

THUS  much  of  the  clergy,  properly  fo  called.  There  are  alfo 
certain  inferior  ecclefiaftical  officers  of  whom  the  common  law 
takes  notice;  and  that,  principally,  to  affift  the  ecclefiaftical  ju- 
rifdiction,  where  it  is  deficient  in  powers.  On  which  officers  I 
fhall  make  a  few  curfory  remarks, 

VII.  CHURCHWARDENS  are  the  guardians  or  keepers  of 
the  church,  and  reprefentatives  of  the  body  of  the  parim  c.  They 
are  fometimes  appointed  by  the  minifter,  fometimes  by  the  parim, 
fometimes  by  both  together,  as  cuflom  directs.  They  are  taken, 
in  favour  of  the  church,  to  be  for  fome  purpofes  a  kind  of  cor- 
poration at  the  common  law ;  that  is,  they  are  enabled  by  that 
name  to  have  a  property  in  goods  and  chattels,  and  to  bring  ac- 
tions for  them,  for  the  ufe  and  profit  of  the  parifh.  Yet  they 
may  not  wafte  the  church  goods,  but  may  be  removed  by  the 
parim,  and  then  called  to  account  by  action  at  the  common  law  : 
but  there  is  no  method  of  calling  them  to  account,  but  by  firft 
removing  them ;  for  none  can  legally  do  it,  but  thoie  who  are 
put  in  their  place.  As  to  lands,  or  other  real  property,  as  the 
church,  church-yard,  &c,  they  have  no  fort  of  intereft  therein; 

z  I  Burn.  eccl.  law.  427.  c  In  Sweden  they  have  fimilar  officers, 

1  Stat.  28  Hen.  VIII.  c.  11.  whom  they  call  kierckifr-wariattdes..    Stiern- 

b  Stat.  12  Ann.  ft.  2.  c.  12.  hook.  1.  3.  c.  7. 

but 


Ch.n.  of    PERSONS.  395 

but  if  any  damage  is  done  thereto,  the  parfbn  only  or  vicar  fiiall 
have  the  action.  Their  office  alfo  is  to  repair  the  church,  and 
make  rates  and  levies  for  that  purpofe  :  but  thefe  are  recoverable 
only  in  the  ecclefiaflical  court.  They  are  alfo  joined  with  the 
overfeers  in  the  care  and  maintenance  of  the  poor.  They  are  to 
levyd  a  (hilling  forfeiture  on  all  fuch  as  do  not  repair  to  church 
on  fundays  and  holidays,  and  are  empowered  to  keep  all  perfons 
orderly  while  there ;  to  which  end  it  has  been  held  that  a  church- 
warden may  juftify  the  pulling  off  a  man's  hat,  without  being 
guilty  of  either  an  aflault  or  trefpafs e.  There  are  alfo  a  multi- 
tude of  other  petty  parochial  powers  committed  to  their  charge 
by  divers  acts  of  parliament f. 

VIII.  PA  RISK  clerks  and  fextons  are  alfo  regarded  by  the 
common  law,  as  perfons  who  have  freeholds  in  their  offices ;  and 
therefore  though  they  may  be  punifhed,  yet  they  cannot  be  de- 
prived, by  ecclefiaflical  cenfures 6.  The  pariih  clerk  was  formerly 
very  frequently  in  holy  orders ;  and  fome  are  fo  to  this  day.  He 
is  generally  appointed  by  the  incumbent,  but  by  cuftom  may  be 
chofen  by  the  inhabitants ;  and  if  fuch  cuftom  appears,  the  court 
of  king's  bench  will  grant  a  mandamus  to  the  arch- deacon  to 
fwear  him  in,  for  the  eflablifhment  of  the  cuftom  turns  it  into 
a  temporal  or  civil  right h. 

*  Stat.  I  Eliz.  c.  2.  church,  churchwardens, 

e   i  Lev.  196.  z  2  Roll.  Abr.  234. 

f  See  Lambard  of  churchwardens,  at  the  k  Cro.  Car.  589. 
end  of  his  eirenarcha ;   and  Dr  Burn,  tit. 


Bbb    2 


396  The    RIGHTS  BOOK  L 


CHAPTER     THE     TWELFTH. 
OF     THE     CIVIL     STATE. 


THE  lay  part  of  his  majefty's  fubjefts,  or  fuch  of  the  people 
as  are  not  comprehended  under  the  denomination  of  clergy, 
may  be  divided  into  three  diflincl  flates,  the  civil,  the  military, 
and  the  maritime. 

TH  AT  part  of  the  nation  which  falls  under  our  frrfl  and  mofl 
comprehensive  divifion,  the  civil  flate,  includes  all  orders  of  men 
from  the  highefl  nobleman  to  the  meaneft  peafant,  that  are  not 
included  under  either  our  former  divifion,  of  clergy,  or  under 
one  of  the  two  latter,  the  military  and  maritime  flates  :  and  it 
may  fometimes  include  individuals  of  the  other  three  orders  ; 
fmce  a  nobleman,  a  knight,  a  gentleman,  or  a  peafant,  may  be- 
come either  a  divine,  a  foldier,  or  a  feaman. 

TH  E  civil  flate  confifls  of  the  nobility  and  the  commonalty. 
Of  the  nobility,  the  peerage  of  Great  Britain,  or  lords  temporal, 
as  forming  (together  with  the  bifhops)  one  of  the  fupreme  branches 
of  the  legiflature,  I  have  before  fufficiently  fpoken  :  we  are  here 
to  confider  them  according  to  their  feveral  degrees,  or  titles  of 
honour. 

ALL 


Ch.  12.  of    PERSONS.  397 

ALL  degrees  of  nobility  and  honour  are  derived  from  the 
king  as  their  fountain3:  and  he  may  inftitute  what  new  titles 
he  pleafes.  Hence  it  is  that  all  degrees  of  honour  are  not  of  equal 
antiquity.  Thofe  now  in  ufe  are  dukes,  marquefles,  earls,  vif- 
counts,  and  barons b. 

1.  A  duke,  though  it  be  with  us,  as  a  mere  title  of  nobility, 
inferior  in  point  of  antiquity  to  many  others,  yet  it  is  fuperior  to 
all  of  them  in  rank  ;   being  the  firft  title  of  dignity  after  the  royal 
family c.    Among  the  Saxons  the  Latin  name  of  dukes,  duces,  is 
very  frequent,  and  fignified,  as  among  the  Romans,  the  com- 
manders or  leaders  of  their  armies,  whom  in  their  own  language 
they  called  penetoja d ;  and  in  the  laws  of  Henry  I  (as  tranflated 
by  Lambard)  we  find  them  called  heretochii.    But  after  the  Nor- 
man conquefl,  which  changed  the  military  polity  of  the  nation, 
the  kings  themfelves  continuing  for  many  generations  dukes  of 
Normandy,  they  would  not  honour  any  fubjecls  with  that  title, 
till  the  time  of  Edward  III ;  who,  claiming  to  be  king  of  France, 
and  thereby  lofing  the  ducal  in  the  royal  dignity,  in  the  eleventh 
year  of  his  reign  created  his  fon,  Edward  the  black  prince,  duke 
of  Cornwall :    and  many,  of  the  royal  family  efpecially,    were 
afterwards  raifed  to  the  fame  honour.     However,  in  the  reign  of 
queen  Elizabeth,  A.  D.  1572%  the  whole  order  became  utterly 
extinct :  but  it  was  revived  about  fifty  years  afterwards  by  her 
fucceffor,  who  was  remarkably  prodigal  of  honours,  in  the  per- 
fon  of  George  Villiers  duke  of  Buckingham. 

2.  A  marquefs,  marc/no,  is  the  next  degree  of  nobility.     His 
office  formerly  was  (for  dignity  and  duty  were  never  feparated  by 
our  anceftors)  to  guard  the  frontiers  and  limits  of  the  kingdom; 

a  4.  Inft.  363.  d  This  is  apparently  derived  from  the 

b  For  the  original  of  thefe  titles  on  the  fame  root  as  the  German  Sd'tjOjjeH,  the 

continent  of  Europe,  and  their  fubfequent  antient  appellation  of  dukes  in  that  country. 

introduction  into  thisifland,  fee  Mr. Selden's  Seld.  tit.  hon.  2.  i.  iz. 

titles  of  honour.  e  Caniden.  Britan.  tit.  ordints.  Spelman. 

c  Camden.  Britan.  tit.  ardines,  doff.  icji. 

which 


398  7%e    RIGHTS  BOOK  I. 

which  were  called  the  marches,  from  the  teutonic  word,  marche, 
a  limit :  as,  in  particular,  were  the  marches  of  Wales  and  Scot- 
land, while  they  continued  to  be  enemies  countries.  The  per- 
fons,  who  had  command  there,  were  called  lords  marchers,  or 
marquelTes  ;  whofe  authority  was  abolifhed  by  ftatute  27  Hen.  VIII. 
c.  27  :  though  the  title  had  long  before  been  made  a  mere  enfign 
of  honour ;  Robert  Vere,  earl  of  Oxford,  being  created  marqueis 
of  Dublin,  by  Richard  II  in  the  eighth  year  of  his  reign f. 

3.  AN  earl  is  a  title  of  nobility  fo  antient,  that  it's  original 
cannot  clearly  be  traced  out.  Thus  much  feems  tolerably  certain  : 
that  among  the  Saxons  they  were  called  ealdormen,  quafi  elder 
men,  fignifying  the  fame  asjen/or  orfenator  among  the  Romans  • 
and  alfo  Jchircmen,  becaufe  they  had  each  of  them  the  civil  go- 
vernment of  a  feveral  divifion  or  mire.  On  the  irruption  of  the 
Danes,  they  changed  the  name  to  eorlt-s,  which,  according  to 
Camden  g,  lignified  the  fame  in  their  language.  In  Latin  they 
are  called  comites  (a  title  firft  ufed  in  the  empire)  from  being  the 
king's  attendants  ;  <c  a  focietate  nomen  JumpJ'erunt ,  reges  enim  tales 
"  Jibi  ajjociant1"."  After  the  Norman  Conqueft  they  were  for  fome 
time  called  counts,  or  conntees,  from  the  French ;  but  they  did 
not  long  retain  that  name  themfelves,  though  their  mires  are  from 
thence  called  counties  to  this  day.  It  is  now  become  a  mere  title, 
they  having  nothing  to  do  with  the  government  of  the  county ; 
which,  as  has  been  more  than  once  obferved,  is  now  entirely  de- 
volved on  the  meriff,  the  earl's  deputy,  or  vice-comes.  In  writs, 
and  commiffions,  and  other  formal  instruments,  the  king,  when 
he  mentions  any  peer  of  the  degree  of  an  earl,  frequently  ftiles  him 
"  trufty  and  well  beloved  coufm :"  an  appellation  as  antient  as  the 
reign  of  Henry  IV ;  who  being  either  by  his  wife,  his  mother, 
or  his  fitters,  actually  related  or  allied  to  every  earl  in  the  king- 
dom, artfully  and  conftantly  acknowleged  that  connexion  in  all 
his  letters  and  other  public  acts  j  from  whence  the  ufage  has  def- 
cended  to  his  fucceiTors,  though  the  reafon  has  long  ago  failed. 

f  z  Inft.  5.  h  Brafton./.  i.  c.  S.    Flet.  /.  i.  c.  5. 

s  Ibid. 

4.  THE 


Ch.  12.  of    PERSONS.  399 

4.  T  H  E  name  of  vice-comes  or  vifcount  was  afterwards  made 
ufe  of  as  an  arbitrary  title  of  honour,  without  any  (hadow  of  of- 
fice pertaining  to  it,  by  Henry  the  fixth ;  when  in  the  eighteenth 
year  of  his  reign,  he  created  John  Beaumont  a  peer,  by  the  name 
of  vifcount  Beaumont,  which  was  the  firfl  iniiance  of  the  kind  '. 

5.  A  harm's  is  the  moft  general   and  univerfal  title  of  no- 
bility ;  for  originally  every  one  of  the  peers  of  fuperior  rank  had 
alfo  a  barony  annexed  to  his  other  titles  k.    But  it  hath  fometimes 
happened  that,  when  an  antient  baron  hath  been  railed  to  a  new 
degree  of  peerage,  in  the  courfe  of  a  few  generations  the  two  titles 
have  defcended  differently ;  one  perhaps  to  the  male  defeendants, 
the  other  to  the  heirs  general ;  whereby  the  earldom  or  other 
fuperior  title  hath  fubfiited  without  a  barony  :  and  there  are  alfo 
modern  instances   where  earls   and  vifcounts  have  been  created 
without  annexing  a  barony  to  their  other  honours  :   fo  that  now 
the  rule  doth  not  hold  univerfally,  that  all  peers  are  barons.  The 
original  and  antiquity  of  baronies  has  occaiioned  great  enquiries 
among  our  Englifh  antiquarians.      The  moil  probable  opinion 
feems  to  be,  that  they  were  the  fame  with  our  prefent  lords  of 
manors ;  to  which  the  name  of  court  baron,  (which  is  the  lord's 
court,  and  incident  to  every  manor)  gives  fome  countenance.     It 
may  be  collected  from  king  John's  magna  carta  ',    that  originally 
all  lords  of  manors,  or  barons,  that  held  of  the  king  in  capite, 
had  feats  in  the  great  council  or  parliament,  till  about  the  reign 
of  that  prince  the  conflux  of  them  became  fo  large  and  trouble- 
fome,  that  the  king  was  obliged  to  divide  them,  and  fummon 
only  the  greater  barons  in  perfon ;  leaving  the  fmall  ones  to  be 
fummoned  by  the  iheriff,  and  (as  it  is  laid)  to  fit  by  reprefenta- 
tion  in  another  houfe ;  which  gave  rife  to  the  feparation  of  the 
two  houfes  of  parliament"1.   By  degrees  the  title  came  to  be  con- 
fined to  the  greater  barons,  or  lords  of  parliament  only ;  and  there- 

!  2  Infl.  5.  "  Gilb.  hift.  of  exch.  c.  3.     Sdd.  tit.  of 

*  2  Inft.  5,  6.  hon,  2.  5.  2.1. 

1  caf.  14. 

were 


400  77je    RIGHTS  BOOK  I. 

were  no  other  barons  among  the  peerage  but  fuch  as  were  fum- 
moned  by  writ,  in  refpedt  of  the  tenure  of  their  lands  or  baro- 
nies, till-  Richard  the  fecond  firil  made  it  a  mere  title  of  honor, 
by  conferring  it  on  divers  perfons  by  his  letters  patent n. 

HAVING  made  this  fhort  enquiry  into  the  original  of 
our  feveral  degrees  of  nobility,  I  fhall  next  conllder  the  man- 
ner in  which  they  may  be  created.  The  right  of  peerage 
feems  to  have  been  originally  territorial ;  that  is,  annexed  to 
lands,  honors,  caftles,  manors,  and  the  like,  the  proprietors  and 
poflerTors  of  which  were  (in  right  of  thofe  eftates)  allowed  to  be 
peers  of  the  realm,  and  were  fummoned  to  parliament  to  do  fuit 
and  fervice  to  their  fovereign  :  and,  when  the  land  was  alienated, 
the  dignity  pafled  with  it  as  appendant.  Thus  the  bifhops  flill  lit 
in  the  houfe  of  lords  in  right  of  fucceffion  to  certain  antient  ba- 
ronies annexed,  or  fuppofed  to  be  annexed,  to  their  epifcopal 
lands0 :  and  thus,  in  n  Hen. VI,  the  poffeiiion  of  the  cattle  of 
Arundel  was  adjudged  to  confer  an  earldom  on  it's  poflerTorp.  But 
afterwards,  when  alienations  grew  to  be  frequent,  the  dignity  of 
peerage  was  confined  to  the  lineage  of  the  party  ennobled,  and 
inftead  of  territorial  became  perfonal.  Actual  proof  of  a  tenure 
by  barony  became  no  longer  neceflary  to  confKtute  a  lord  of  par- 
liament ;  but  the  record  of  the  writ  of  fummons  to  him  or  his 
ancestors  was  admitted  as  a  fufficient  evidence  of  the  tenure. 

PEERS  are  now  created  either  by  writ,  or  by  patent  :  for 
thofe  who  claim  by  prefcription  mufl  fuppofe  either  a  writ  or  pa- 
tent made  to  their  anceflors ;  though  by  length  of  time  it  is  loft. 
The  creation  by  writ,  or  the  king's  letter,  is  a  fummons  to  at- 
tend the  houfe  of  peers,  by  the  ftile  and  title  of  that  barony, 
which  the  king  is  pleafed  to  confer  :  that  by  patent  is  a  royal 
grant  to  a  fubjeft  of  any  dignity  and  degree  of  peerage.  The 
creation  by  writ  is  the  more  antient  way ;  but  a  man  is  not  en- 
nobled thereby,  unlefs  he  adlually  takes  his  feat  in  the  houfe  of 

"   i  Inft.  9.  Seld.  Jan.  Angl.  z,  §.  66.  t  Seld.  tit.  of  hon.  b.  2.  c.  9.  §.  5. 

0  Glanv.  /.  7.  c.  i. 

lords ; 


Ch.  12.  of    PERSONS.  401 

lords :  and  fome  are  of  opinion  that  there  muft  be  at  leaft  two 
writs  of  fummons,  and  a  fitting  in  two  diftinft  parliaments,  to 
evidence  an  hereditary  barony  q :  and  therefore  the  moft  ufual, 
becaufe  the  fureft,  way  is  to  grant  the  dignity  by  patent,  which 
enures  to  a  man  and  his  heirs  according  to  the  limitations  there- 
of, though  he  never  himfelf  makes  ufe  of  it r.  Yet  it  is  frequent 
to  call  up  the  eldeft  fon  of  a  peer  to  the  houfe  of  lords  by  writ 
of  fummons,  in  the  name  of  his  father's  barony:  becaufe  in  that 
cafe  there  is  no  danger  of  his  children's  lofing  the  nobility  in  cafe 
he  never  takes  his  feat  j  for  they  will  fucceed  to  their  grand- 
father. Creation  by  writ  has  alfo  one  advantage  over  that  by  pa- 
tent :  for  a  perfon  created  by  writ  holds  the  dignity  to  him  and 
bis  heirs,  without  any  words  to  that  purport  in  the  writ ;  but  in 
letters  patent  there  muft  be  words  to  direct  the  inheritance,  elfe 
the  dignity  enures  only  to  the  grantee  for  life s.  For  a  man  or 
woman  may  be  created  noble  for  their  own  lives,  and  the  dig- 
nity not  defcend  to  their  heirs  at  all,  or  defcend  only  to  fome 
particular  heirs :  as  where  a  peerage  is  limited  to  a  man,  and 
the  heirs  male  of  his  body  by  Elizabeth  his  prefent  lady,  and  not 
to  fuch  heirs  by  any  former  or  future  wife. 

L  E  T  us  next  take  a  view  of  a  few  of  the  principal  incidents 
attending  the  nobility,  exclufive  of  their  capacity  as  members  of 
parliament,  and  as  hereditary  counfellors  of  the  crown  j  both  of 
which  we  have  before  confidered.  And  firft  we  muft  obferve, 
that  in  criminal  cafes  a  nobleman  mall  be  tried  by  his  peers. 
The  great  are  always  obnoxious  to  popular  envy  :  were  they  to 
be  judged  by  the  people,  they  might  be  in  danger  from  the  pre- 
judice of  their  judges;  and  would  moreover  be  deprived  of  the 
privilege  of  the  meaneft  fubjects,  that  of  being  tried  by  their 
equals,  which  is  fecured  to  all  the  realm  by  magna  carta,  c.  29. 
It  is  faid,  that  this  does  not  extend  to  bifhops ;  who,  though  they 
are  lords  of  parliament,  and  fit  there  by  virtue  of  their  baronies 
which  they  hold  jure  ecclefiae,  yet  are  not  ennobled  in  blood, 

*  Whitelocke  of  parl.  eh.  1 14.  s  Co.  Litt.  9.  16. 

'  Co.  Liu.  1 6. 

C  c  c  and 


4O2  The    RIGHTS  BOOK  I. 

and  confequently  not  peers  with  the  nobility  *.    As  to  peerefles, 
no  provifion  was  made  for  their  trial  when  accufed  of  treafon  or 
felony,   till  after  Eleanor  duchefs  of  Gloucefter,  wife  to  the  lord 
protector,  had  been  accufed  of  treafon  and  found  guilty  of  witch- 
craft, in  an  eccleiiaftical  fynod,  through  the  intrigues  of  cardinal 
Beaufort.    This  very  extraordinary  trial  gave  occafion  to  a  fpecial 
ftatute,  20  Hen.  VI.  c.  9.  which  enacts  that  peerefles,  either  in  their 
own  right  or  by  marriage,  mall  be  tried  before  the  fame  judi- 
cature as  peers  of  the  realm.     If  a  woman,  noble  in  her  own. 
right,  marries  a  commoner,  fhe  flill  remains  noble,  and  mall  be 
tried  by  her  peers :  but  if  fhe  be  only  noble  by  marriage,  then 
by  a  fecond  marriage,  with  a  commoner,  me  lofes  her  dignity  ; 
for  as  by  marriage  it  is  gained,  by  marriage  it  is  alfo  loft.  Yet  if 
a  duchefs  dowager  marries  a  baron,  me  continues  a  duchefs  flill  ; 
for  all  the  nobility  are  pares,  and  therefore  it  is  no  degradation  v. 
A  peer,  or  peerefs  (either  in  her  own  right  or  by  marriage)  can- 
not be  arrefled  in  civil  cafes  u :  and  they  have  alfo  many  peculiar 
privileges  annexed  to  their  peerage  in  the  courfe  of  judicial  pro- 
ceedings. A  peer,  fitting  in  judgment,  gives  not  his  verdict  upon, 
oath,  like  an  ordinary  juryman,  but  upon  his  honour  w:  he  an- 
fwers  alfo  to  bills  in  chancery  upon  his  honour,  and  not  upon  his 
oath x  j  but,  when  he  is  examined  as  a  witnefs  either  in  civil  or 
criminal  cafes,  he  muft  be  fworn y :  for  the  refpect,  which  the 
law  mews  to  the  honour  of  a  peer,  does  not  extend  fo  far  as  to  • 
overturn  a  fettled  maxim,  that  injudicio  non  creditur  nifi  juratis z. 
The  honour  of  peers  is  however  fo  highly  tendered  by  the  law, 
that  it  is  much  more  penal  to  fpread  falfe  reports  of  them,  and 
certain  other  great  officers  of  the  realm,  than  of  other  men  : 
fcandal  againft  them  being  called  by  the  peculiar  name  of  fcan- 
dalum  mugnatum,  and  fubjected  to  peculiar  puniihment  by  divers 
antient  flatutes a. 

1  3  Inft.  30,  31.  *  Salk..5i2. 

v  2  Inft.  50.  z  Cro.  Car.  64. 

"  Finch.  L.  355.     I  Ventr.  298.  a  3  Edw.  I.  c.  34.    2  Ric.  II.  ft.  I.  c.  5. 

W2  Inft.  49.  1 2  Ric.  II.  e.  u. 

*  I  P.  W".  146. 

A    PEER 


Ch,  12.  of    PERSONS.  403 

A  P  E  E  R  cannot  lofe  his  nobility,  but  by  death  or  attainder ; 
though  there  was  an  inftance,  in  the  reign  of  Edward  the  fourth, 
of  the  degradation  of  George  Nevile  duke  of  Bedford  by  adl  of 
parliament b,  on  account  of  his  poverty,  which  rendered  him  un- 
able to  fupport  his  dignity c.  But  this  is  a  fmgular  inftance : 
which  ferves  at  the  fame  time,  by  having  happened,  to  {hew  the 
power  of  parliament ;  and,  by  having  happened  but  once,  to 
fhew  how  tender  the  parliament  hath  been,  in  exerting  fo  high 
a  power.  It  hath  been  faid  indeed  d,  that  if  a  baron  wafte  his 
eftate,  fo  that  he  is  not  able  to  fupport  the  degree,  the  king  may 
degrade  him  :  but  it  is  expreflly  held  by  later  authorities  c,  that 
a  peer  cannot  be  degraded  but  by  act  of  parliament. 

THE  commonalty,  like  the  nobility,  are  divided  into  feveral 
degrees ;  and,  as  the  lords,  though  different  in  rank,  yet  all  of 
them  are  peers  in  refpect  of  their  nobility,  fo  the  commoners, 
though  fome  are  greatly  fuperior  to  others,  yet  all  are  in  law  peers, 
in  refpect  of  their  want  of  nobility f. 

TH  E  firft  name  of  dignity,  next  beneath  a  peer,  was  antiently 
that  of  vidames,  vice  dominit  or  vafaafors*:  who  are  mentioned 
by  our  antient  lawyers  h  as  viri  magnae  dignitatu ;  and  fir  Edward 
Coke '  fpeaks  highly  of  them.  Yet  they  are  now  quite  out  of 
ufe ;  and  our  legal  antiquarians  are  not  agreed  upon  even  their 
original  or  antient  office. 

b  4  Inft.  355.  "trouble  of  all  fuch  countries  where  fuch 

c  The  preamble  to  the  a£l  is  remarkable :  "  eftate   fhall   happen    to   be  :    therefore, 

"  forafmuch  as  oftentimes  it  is  feen,  that  "  &c." 

"when  any  lord  is  called  to  high  eftate,  d  Moor.  678. 

"and  hath  not  convenient  livelyhood   to  e  12  Rep.  107.    12  Mod.  56. 

«*"  fupport  the  fame   dignity,    it  induceth  f  2  Inft.  29. 

"  great  poverty  and  indigence,  and  caufeth  s  Camden.  ibid. 

"  oftentimes   great  extortion,   embracery,  h  Brafton.  /.  i .  f.  8. 

"  and  maintenance  to  be  had ;  to  the  great  '  2  Inft.  667. 

C  C  C    2  NOW 


404  ffie    RIGHTS  BOOK!. 

Now  therefore  the  firft  dignity,  after  the  nobility,  is  a  knight 
of  the  order  of  St.  George,  or  of  the  garter ;  firft  inftituted  by 
Edward  III,  A,  D.  I344k-  Next  follows  a  knight  banneret ;  who 
indeed  by  ftatutes  5  Ric.  II.  ft.  2.  c.  4.  and  14  Ric.  II.  c.  n.  is 
ranked  next  after  barons :  and  that  precedence  was  confirmed  to 
him  by  order  of  king  James  I,  in  the  tenth  year  of  his  reign '. 
But,  in  order  to  intitle  himfelf  to  this  rank,  he  muft  have  been 
created  by  the  king  in  perfon,  in  the  field,  under  the  royal  ban- 
ners, in  time  of  open  war  m.  Elfe  he  ranks  after  baronets  ;  who 
are  the  next  order  :  which  title  is  a  dignity  of  inheritance, 
created  by  letters  patent,  and  ufually  defcendible  to  the  ifiue  male. 
It  was  firft  inftituted  by  king  James  the  firft,  A.D.  1611.  in 
order  to  raife  a  competent  fum  for  the  reduction  of  the  province 
of  Ulfter  in  Ireland ;  for  which  reafon  all  baronets  have  the  arms 
of  Ulfter  fuperadded  to  their  family  coat.  Next  follow  knights  of 
the  bath ;  an  order  inftituted  by  king  Henry  IV,  and  revived  by 
king  George  the  firft.  They  are  fo  called  from  the  ceremony  of 
bathing,  the  night  before  their  creation.  The  laft  of  thefe  in- 
ferior nobility  are  knights  bachelors ;  the  moft  antient,  though  the 
loweft,  order  of  knighthood  amongft  us :  for  we  have  an  in- 
ftance  "  of  king  Alfred's  conferring  this  order  on  his  fon  Athel- 
ftan.  The  cuftom  of  the  antient  Germans  was  to  give  their 
young  men  a  fhield  and  a  lance  in  the  great  council  :  this  was 
equivalent  to  the  toga  virilis  of  the  Romans  :  before  this  they 
were  not  permitted  to  bear  arms,  but  were  accounted  as  part  of 
the  father's  houfhold  -,  after  it,  as  part  of  the  public  °.  Hence 
fome  derive  the  ufage  of  knighting,  which  has  prevailed  all  over 
the  weftern  world,  fince  it's  reduction  by  colonies  from  thofe  nor- 
thern heroes.  Knights  are  called  in  Latin  equites  aurati ;  aurati, 
from  the  gilt  fpurs  they  wore ;  and  equites,  becaufe  they  always 
ferved  on  horfeback  :  for  it  is  obfervable  p,  that  almoft  all  nations 
call  their  knights  by  fome  appellation  derived  from  an  horfe. 

k  Scld.  tit.  of  hon.  2.5.41.  "  Will.  Malmfb.  lib.  2. 

1  Ibid.  2.  ii.   3.  c  Tac.  demorib.  Germ.  13. 

•  4  Inft  6.  P  Camden.  ibid.    Co,  Litt.  74: 

They 


Ch,  12.  of    PERSONS.  405 

They  are  alfo  called  in  our  law  milites,  becaufe  they  formed  a 
part,  or  indeed  the  whole,  of  the  royal  army,  in  virtue  of  their 
feodal  tenuiesj  one  condition  of  which  was,  that  every  one  who 
held  a  knight's  fee  (which  in  Henry  the  fecond's  timeq  amounted 
to  20 1.  per  (Dinunr)  was  obliged  to  be  knighted,  and  attend  the 
king  in  his  wars,  or  fine  for  his  non-compliance.  The  exertion 
of  this  prerogative,  as  an  expedient  to  raife  money  in  the  reign 
of  Charles  the  firft,  gave  great  offence  ;  though  warranted  by 
law,  and  the  recent  example  of  queen  Elizabeth  :  but  it  was,  at 
the  restoration,  together  with  all  other  military  branches  of  the 
feodal  law,  abolimed;  and  this  kind  of  knighthood  has,  fmce 
that  time,  fallen  into  great  difregard. 

TH  E  s  E,  fir  Edward  Coke  fays r,  are  all  the  names  of  dignity 
in  this  kingdom,  efquires  and  gentlemen  being  only  names  of 
worjlrip.  But  before  thefe  laft  the  heralds  rank  all  colonels,  fer- 
jeants  at  law,  and  doclors  in  the  three  learned  profeffions. 

E  s  oja  IRES  and  gentlemen  are  confounded  together  by  fir 
Edward  Coke,  who  obferves  s,  that  every  efquire  is  a  gentleman, 
and  a  gentleman  is  defined  to  be  one  qui  arma  gerit,  who  beass 
coat  armour,  the  grant  of  which  adds  gentility  to  a  man's  family  : 
in  like  manner  as  civil  nobility,  among  the  Romans,  was  founded 
in  the  jus  imaginum,  or  having  the  image  of  one  anceftor  at  leaft, 
who  had  borne  fome  curule  office.  It  is  indeed  a  matter  fome- 
what  unfettled,  what  conftitutes  the  distinction,  or  who  is  a  real 
efquire :  for  it  is  not  an  eftate,  however  large,  that  confers  this 
rank  upon  it's  owner.  Camden,  who  was  himfelf  a  herald,  dif- 
tinguifhes  them  the  moft  accurately ;  and  he  reckons  up  four  forts 
of  them1:  i.  The  eldeft  fons  of  knights,  and  their  eldeft  fens* 
in  perpetual  fucceffion  u.  2.  The  younger  fons  of  peers,  and  their 
eldeft  fons,  in  like  perpetual  fucceflion  :  both  which  fpecies  of 
efquires  fir  Henry  Spelman  entitles  armigerinatalitii™.  3.  Efquires 

s  Glanvil.  /.  9.  f.  4.  «  Hid. 

*  2  Inft.  667.  «  2  Inft.  667. 

S2lnfl.668.  wGkff.  43. 

created 


406  77je    RIGHTS  BOOK!. 

created  by  the  king's  letters  patent,  or  other  inveftiture ;  and 
their  eldeft  fons.  4.  Efquires  by  virtue  of  their  offices ;  as  juftices 
of  the  peace,  and  others  who  bear  any  office  of  truft  under  the 
crown.  To  thefe  may  be  added  the  efquires  of  knights  of  the  bath, 
each  of  whom  conftitiites  three  at  his  inftallation  :  and  all  foreign, 
nay,  Irifli  peers  -,  for  not  only  thefe,  but  the  eldeft  fons  of  peers 
of  Great  Britain,  though  frequently  titular  lords,  are  only  efquires 
in  the  law,  and  muft  fo  be  named  in  all  legal  proceedings  *.  As 
for  gentlemen,  fays  fir  Thomas  Smith y,  they  be  made  good  cheap 
in  this  kingdom  :  for  whofoever  ftudieth  the  laws  of  the  realm, 
who  ftudieth  in  the  univerfities,  who  profeffeth  liberal  fciences, 
and  (to  be  fliort)  who  can  live  idly,  and  without  manual  labour, 
and  will  bear  the  port,  charge,  and  countenance  of  a  gentleman, 
he  mail  be  called  mafter,  and  fhall  be  taken  for  a  gentleman.  A 
yeoman  is  he  that  hath  free  land  of  forty  millings  by  the  year ; 
who  is  thereby  qualified  to  ferve  on  juries,  vote  for  knights  of  the 
mire,  and  do  any  other  aft,  where  the  law  requires  one  that  is 
probus  et  le galls  homo  z. 

THE  reft  of  the  commonalty  are  tradefmen,  artificers,  and  /<z- 
bourers;  who  (as  well  as  all  others)  muft  in  purfuance  of  the  fta- 
tute  i  Hen.  V.  c.  5.  be  ftiled  by  the  name  and  addition  of  their 
eftate,  degree,  or  myftery,  in  all  actions  and  other  legal  pro- 
ceedings. 

*  3  Inft.  30.    2  Inft.  667.  *  2  Inft.  668. 

y  Commonvv.  of  Eng.  b.  i.  c.  20. 


Ch,  13.  of  PERSONS.  407 


CHAPTER     THE     THIRTEENTH. 

OF    THE    MILITARY    AND    MARITIME 

STATES. 


THE  military  ftate  includes  the  whole  of  the  foldiery  ;   or, 
fuch  perfons  as  are  peculiarly  appointed  among  the  reft  of 
the  people,  for  the  fafeguard  and  defence  of  the  realm. 

I N  a  land  of  liberty  it  is  extremely  dangerous  to  make  a  dif- 

tind:  order  of  the  profeffion  of  arms.    In  abfolute  monarchies 

this  is  neceffary  for  the  iafety  of  the  prince,  and  arifes  from  the 

main  principle  of  their  conftitution,  which  is  that  of  governing 

by  fear :    but  in  free  flates  the  profeffion  of  a  foldier,    taken 

fingly  and  merely  as  a  profeffion,  is  juftly  an  object  of  jealoufy.. 

In  theie  no  man  fhould  take  up  arms,  but  with  a  view  to  defend 

his  country  and  it's  laws  :  he  puts  not  off  the  citizen  when  he 

enters  the  camp  ;  but  it  is  becaufe  he  is  a  citizen,  and  would 

wifh  to  continue  fo,  that  he  makes  himfelf  for  a  while  a  foldier. 

The  laws  therefore  and  conftitution  of  thefe  kingdoms  know 

no  fuch  ftate  as  that  of  a  perpetual  ftanding  foldier,  bred  up  to 

no  other  profeffion  than  that  of  war  :  and  it  was  not  till  the  reign 

of  Henry  VII,  that  the  kings  of  England  had  fo  much  as  at 

guard  about  their  perfons.. 

IN 


408  The    RIGHTS  BOOK!. 

I  N  the  time  of  our  Saxon  anceftors,  as  appears  from  Edward 
the  confeflbr's  laws a,  the  military  force  of  this  kingdom  was  in 
the  hands  of  the  dukes  or  heretochs,  who  were  constituted 
through  every  province  and  county  in  the  kingdom  -,  being  taken 
out  of  the  principal  nobility,  and  fuch  as  were  moft  remarkable 
for  being  "fapientes,  fdeles,  et  animofi"  Their  duty  was  to  lead 
and  regulate  the  Englifh  armies,  with  a  very  unlimited  power  j 
"  prout  els  iiifum  fuerit,  ad  honor  em  coronae  et  ut  Hit  at  em  regni." 
And  becaufe  of  this  great  power  they  were  elected  by  the  people 
in  their  full  affembly,  or  folkmote,  in  the  fame  manner  as  Sheriffs 
were  elected  :  following  Still  that  old  fundamental  maxim  of  the 
Saxon  constitution,  that  where  any  officer  was  entrufted  with  fuch 
power,  as  if  abufed  might  tend  to  the  oppreSfion  of  the  people, 
that  power  was  delegated  to  him  by  the  vote  of  the  people  them- 
felves b.  So  too,  among  the  antient  Germans,  the  anceftors  of  our 
Saxon  forefathers,  they  had  their  dukes,  as  well  as  kings,  with 
an  independent  power  over  the  military,  as  the  kings  had  over 
the  civil  ftate.  The  dukes  were  elective,  the  kings  hereditary  : 
for  fo  only  can  be  confiftently  understood  that  paflage  of  Tacitus0, 
"  reges  ex  nobUltate,  duces  ex  virtute  futnunt ;"  in  constituting  their 
kings,  the  family  or  blood  royal  was  regarded,  in  chufing  their 
dukes  or  leaders,  warlike  merit :  juft  as  Ceafar  relates  of  their 
anceftors  in  his  time,  that  whenever  they  went  to  war,  by  way 
either  of  attack  or  defence,  they  eletted  leaders  to  command 
them d.  This  large  mare  of  power,  thus  conferred  by  the  people, 
though  intended  to  preferve  the  liberty  of  the  Subject,  was  per- 
haps unreafonably  detrimental  to  the  prerogative  of  the  crown  : 
and  accordingly  we  find  a  very  ill  ufe  made  of  it  by  Edric  duke 
of  Mercia,  in  the  reign  of  king  Edmond  Ironfide ;  who,  by  his 
office  of  duke  or  heretoch,  was  entitled  to  a  large  command  in 

a  c .  de  herctochiis.  "  lent."    LL.  EJw.  Confeffl  ibid.     See  alfo 

b  "  IJIi  were  <viri  ellguntitr  per  commune  Bede,  ecd.  bift.  1.  5.  c.  lo. 
"  con/ilium,  fro  communi  utilitate  regni,  per  c  De  merit.  German.  7. 
"  pro-find  as  et  patrias  umverfas,  et  per  Jingu-  d  ' '  Quum  lellum  ci<vitas  ant  illatum  defendit, 

"  Jos  comitatus,  in  plena  folkmote,  Jicut  et  -vice-  "out  infert,  magiftratus  qui  ei  hello  praejint 

*' comites  prtivinciarum  et  comitatuum  eligi  de~  "  deligimtur"  De  tell.  Gall.  1. 6.  c.  22. 

the 


Ch.  13.  of    PERSONS.  409 

the  king's  army,  and  by  his  repeated  treacheries  at  laft  transferred 
the  crown  to  Canute  the  Dane. 

I  T  feems  univerfally  agreed  by  all  hiftorians,  that  king  Alfred 
firft  fettled  a  national  militia  in  this  kingdom,  and  by  his  prudent 
difcipline  made  all  the  fubjecls  of  his  dominion  foldiers  :  but 
we  are  unfortunately  left  in  the  dark  as  to  the  particulars  of  this 
his  fo  celebrated  regulation  ;  though,  from  what  was  laft  obfer- 
ved,  the  dukes  feem  to  have  been  left  in  poflefTion  of  too  large 
and  independent  a  power :  which  enabled  duke  Harold  on  the 
death  of  Edward  the  confeflbr,  though  a  flranger  to  the  royal 
blood,  to  mount  for  a  mort  fpace  the  throne  of  this  kingdom,  in 
prejudice  of  Edgar  Atheling  the  rightful  heir. 

UPON  the  Norman  conqueft  the  feodal  law  was  introduced 
here  in  all  it's  rigor,  the  whole  of  which  is  built  upon  a  military 
plan.  I  mall  not  now  enter  into  the  particulars  of  that  conftitu- 
tion,  which  belongs  more  properly  to  the  next  part  of  our  com- 
mentaries :  but  mail  only  obferve,  that,  in  confequence  thereof, 
all  the  lands  in  the  kingdom  were  divided  into  what  were  called 
knight's  fees,  in  number  above  fixty  thoufand ;  and  for  every 
knight's  fee  a  knight  or  foldier,  miles,  was  bound  to  attend  the 
king  in  his  wars,  for  forty  days  in  a  year ;  in  which  fpace  of  time, 
before  war  was  reduced  to  a  fcience,  the  campaign  was  generally 
finimed,  and  a  kingdom  either  conquered  or  victorious e.  By  this 
means  the  king  had,  without  any  expenfe,  an  army  of  fixty  thou- 
fand men  always  ready  at  his  command.  And  accordingly  we  find 
one,  among  the  laws  of  William  the  conqueror f,  which  in  the 
king's  name  commands  and  firmly  enjoins  the  perfonal  attendance 
of  all  knights  and  others;  "  quod  habeant  et  teneant  fe  femper  in 
"  armis  et  equis,  ut  decet  et  oportet;  et  quod  femper  Jint  promptl  et 
."paratiadfer'uitiumfuum  integrum  nobis  explendum  et  per  agendum, 
"  cum  opus  adfuerit,  fecundum  quod  debent  defeodis  et  tenementis  fuis 

*  The  Poles  are,  even  at  this  day,  fo  te-  pelled  to  ferve  above  fix  weeks,  or  forty 
nations  of  their  antient  conflitution,  that  days,  in  a  year.  Mod.  Un.  Hift.  xxxiv.  12. 
their  pofpolite,  or  militia,  cannot  be  com-  f  c.  58.  See  Co.  Litt.  75,  76. 

D  d  d  «<fc 


4io  'The    RIGHTS  BOOK!. 

"  de  jure  nobu  facere"  This  perfonal  fervice  in  procefs  of  time 
degenerated  into  pecuniary  commutations  or  aids,  and  at  laft  the 
military  part  of  the  feodal  fyftem  was  abolifhed  at  the  reftora- 
tion,  by  ftatute  12  Car.  II.  c.  24. 

I  N  the  mean  time  we  are  not  to  imagine  that  the  kingdom  was 
left  wholly  without  defence,  in  cafe  of  domeftic  infurreclions,  or 
the  profpect  of  foreign  invafions.  Belides  thofe,  who  by  their 
military  tenures  were  bound  to  perform  forty  days  fervice  in  the 
field,  the  ftatute  of  Winchefter £  obliged  every  man,  according 
to  his  eftate  and  degree,  to  provide  a  determinate  quantity  of  fuch 
arms  as  were  then  in  ufe,  in  order  to  keep  the  peace  :  and  con- 
ftables  were  appointed  in  all  hundreds  to  fee  that  fuch  arms  were 
provided.  Thefe  weapons  were  changed,  by  the  ftatute  4  &  5  Ph. 
6c  M.  c.  2.  into  others  of  more  modern  fervice ;  but  both  this 
and  the  former  provifion  were  repealed  in  the  reign  of  James  Ih. 
While  thefe  continued  in  force,  it  was  ufual  from  time  to  time 
for  our  princes  to  iffue  commimons  of  array,  and  fend  into 
every  county  officers  in  whom  they  could  confide,  to  mufter  and 
array  (or  fet  in  military  order)  the  inhabitants  of  every  diftrid  : 
and  the  form  of  the  commifllon  of  array  was  fettled  in  parlia- 
ment in  the  5  Hen.  IV  \  But  at  the  fame  time  it  was  provided  k, 
that  no  man  fhould  be  compelled  to  go  out  of  the  kingdom  at 
any  rate,  nor  out  of  his  {hire  but  in  cafes  of  urgent  neceffity ; 
nor  mould  provide  foldiers  unlefs  by  confent  of  parliament.  About 
the  reign  of  king  Henry  the  eighth,  and  his  children,  lord  lieute- 
nants began  to  be  introduced,  as  {landing  reprefentatives  of  the 
crown,  to  keep  the  counties  in  military  order ;  for  we  find  them 
mentioned  as  known  officers  in  the  ftatute  4&  5  Ph.  &  M.  c.  3. 
though  they  had  not  been  then  long  in  ufe,  for  Camden  fpeaks 
of  them ',  in  the  time  of  queen  Elizabeth,  as  extraordinary  ma- 
giftrates  conftituted  only  in  times  of  difficulty  and  danger. 

t  13  Edw.  I.  c.  6.  k  Stat.    I   Edw.  III.     ft.  2.    c.  5  &  7. 

k  Stat.  i  Jac.  I.  c.  25.    2J  Jac.I.  c.  28.     25  Edw.  III.  ft.  5.  c.  8. 
1  Ruihworth.  pait  3.  pag.  667,  '  Brit.  103.    Edit.  1594- 

IN 


Ch.  13.  ^PERSONS.  411 

IN  this  ftate  things  continued,  till  the  repeal  of  the  ftatutes  of 
armour  in  the  reign  of  king  James  the  firft  :  after  which,  when 
king  Charles  the  firft  had,  during  his  northern  expeditions,  ifiued 
commiffions  of  lieutenancy  and  exerted  fome  military  powers 
which,  having  been  long  exercifed,  were  thought  to  belong  to 
the  crown,  it  became  a  queftion  in  the  long  parliament,  how  far 
the  power  of  the  militia  did  inherently  refide  in  the  king  ;  being 
now  unfupported  by  any  ftatute,  and  founded  only  upon  im- 
memorial ufage.  This  queflion,  long  agitated  with  great  heat 
and  refentment  on  both  fides,  became  at  length  the  immediate 
caufe  of  the  fatal  rupture  between  the  king  and  his  parliament  : 
the  two  houfes  not  only  denying  this  prerogative  of  the  crown", 
the  legality  of  which  right  perhaps  might  be  fomewhat  doubt- 
ful ;  but  alfo  feifing  into  their  own  hands  the  intire  power  of  the 
militia,  the  illegality  of  which  ftep  could  never  be  any  doubt 
at  all. 

SOON  after  the  reftoration  of  king  Charles  the  fecond,  when 
the  military  tenures  were  abolifhed,  it  was  thought  proper  to  af- 
certain  the  power  of  the  militia,  to  recognize  the  fole  right  of  the 
crown  to  govern  and  command  them,  and  to  put  the  whole  into 
a  more  regular  method  of  military  fubordination  m  :  and  the  or- 
der, in  which  the  militia  now  flands  by  law,  is  principally  built 
upon  the  ftatutes  which  were  then  enadled.  It  is  true  the  two  laft 
of  them  are  apparently  repealed  ;  but  many  of  their  provifions  are 
re-enadled,  with  the  addition  of  fome  new  regulations,  by  the 
prefent  militia  laws  :  the  general  fcheme  of  which  is  to  difcipline 
a  certain  number  of  the  inhabitants  of  every  county,  chofen  by  lot 
for  three  years,  and  officered  by  the  lord  lieutenant,  the  deputy 
lieutenants,  and  other  principal  landholders,  under  a  commifiion 
from  the  crown.  They  are  not  compellable  to  march  out  of  their 
counties,  unlefs  in  cafe  of  invafion  or  adlual  rebellion,  nor  in  any 
cafe  compellable  to  march  out  of  the  kingdom.  They  are  to  be 
exercifed  at  flated  times  :  and  their  difcipline  in  general  is  liberal 


13  Car.  II.  c.  6.     i^Caf.  II.  c.  3.     15  Car.  II.  c,  4. 

D  d  d  2  and 


412  77je    RIGHTS  BOOK  I. 

and  eafy ;  but,  when  drawn  out  into  aclual  fervice,  they  are  fubject 
to  the  rigours  of  martial  law,  as  neceflary  to  keep  them  in  order. 
This  is  the  conftitutional  fecurity,  which  our  laws  have  provided 
for  the  public  peace,  and  for  protecting  the  realm  againft  foreign 
or  domeftic  violence ;  and  which  the  ftatutes  a  declare  is  eflen- 
tially  neceflary  to  the  fafety  and  profperity  of  the  kingdom. 

WHEN  the  nation  was  engaged  in  war,  more  veteran  troops 
and  more  regular  difcipline  were  efteemed  to  be  neceflary,  than 
could  be  expedted  from  a  mere  militia.  And  therefore  at  fuch  times 
more  rigorous  methods  were  put  in  ufe  for  the  raiting  of  ar- 
mies and  the  due  regulation  and  difcipline  of  the  foldiery  :  which 
are  to  be  looked  upon  only  as  temporary  excrefcences  bred  out  of 
the  diftemper  of  the  ftate,  and  not  as  any  part  of  the  permanent 
and  perpetual  laws  of  the  kingdom.  For  martial  law,  which  is 
built  upon  no  fettled  principles,  but  is  entirely  arbitrary  in  it's 
decifions,  is,  as  fir  Matthew  Hale  obferves0,  in  truth  and  reality 
no  law,  but  fomething  indulged,  rather  than  allowed  as  a  law  : 
the  neceflity  of  order  and  difcipline  in  an  army  is  the  only  thing 
which  can  give  it  countenance ;  and  therefore  it  ought  not  to  be 
permitted  in  time  of  peace,  when  the  king's  courts  are  open  for 
all  perfons  to  receive  juftice  according  to  the  laws  of  the  land. 
Wherefore  Thomas  earl  of  Lancafter  being  condemned  at  Pon- 
tefracl:,  i5Edw.  II.  by  martial  law,  his  attainder  was  reverfed 
I  Edw.  III.  becaufe  it  was  done  in  time  of  peace P.  And  it  is 
laid  down q,  that  if  a  lieutenant,  or  other,  that  hath  commif- 
fion  of  martial  authority,  doth  in  time  of  peace  hang  or  otherwife 
execute  any  man  by  colour  of  martial  law,  this  is  murder  j  for  it  is 
againft  magna  carta r.  And  the  petition  of  right s  enacts,  that  no 
foldier  mall  be  quartered  on  the  fubjecl  without  his  own  confent  * ; 
and  that  no  commiflion  mail  iflue  to  proceed  within  this  land  ac- 
cording to  martial  law.  And  whereas,  after  the  restoration,  king 

"  3oGeo.  II.  0.25,  tfc.  '  3  Car.  I.  See  alfo  flat.  31  Car.  II.  c.  i. 

0  Hift.  C.  L.  c.  2.  '  Thus,  in  Poland,   no    foldier  can   be 
f  2  Brad.  Append.  59.  quartered  upon  the  gentiy,  the  only  free- 

1  3  Inft.  52.  men   in   that  republic.    Mod.  Univ.   Hift. 
r  cap,  29.  xjsxiv.  23. 

Charles 


Ch.  13.  of    PERSONS.  413 

Charles  the  fecond  kept  up  about  five  thoufand  regular  troops,  by 
his  own  authority,  for  guards  and  garrifons  ;  which  king  James 
the  fecond  by  degrees  increafed  to  no  lefs  than  thirty  thoufand, 
all  paid  from  his  own  civil  lift ;  it  was  made  one  of  the  articles 
of  the  bill  of  rights v,  that  the  raifing  or  keeping  a  /landing  army 
within  the  kingdom  in  time  of  peace,  unlefs  it  be  with  confent 
of  parliament,  is  againft  law. 

BUT,  as  the  fafhion  of  keeping  ftanding  armies  has  univerfally 
prevailed  over  all  Europe  of  late  years  (though  fome  of  it's  poten- 
tates, being  unable  themfelves  to  maintain  them,  are  obliged  to 
have  recourfe  to  richer  powers,  and  receive  fubfidiary  penfions  for 
that  purpofe)  it  has  alfo  for  many  years  part  been  annually  judged 
neceffary  by  our  legiflature,  for  the  fafety  of  the  kingdom,  the 
defence  of  the  poffeffions  of  the  crown  of  Great  Britain,  and  the 
prefervation  of  the  balance  of  power  in  Europe,  to  maintain  even 
in  time  of  peace  a  ftanding  body  of  troops,  under  the  command 
of  the  crown-;  who  are  however  ipfofaElo  difbanded  at  the  expi- 
ration of  every  year,  unlefs  continued  by  parliament. 

T  o  prevent  the  executive  power  from  being  able  to  opprefs, 
fays  baron  Montefquieu",  it  is  requifite  that  the  armies  with 
which  it  is  entrufted  mould  coniift  of  the  people,  and  have  the 
fame  fpirit  with  the  people;  as  was  the  cafe  at  Rome,  till  Marius 
new-modelled  the  legions  by  enlifting  the  rabble  of  Italy,  and 
laid  the  foundation  of  all  the  military  tyranny  that  enfued.  No- 
thing then,  according  to  thefe  principles,  ought  to  be  more  guarded 
againft  in  a  free  ftate,  than  making  the  military  power,  when 
fuch  a  one  is  neceffary  to  be  kept  on  foot,  a  body  too  diftinc~l  from 
the  people.  Like  ours  therefore,  it  ihould  wholly  be  compofed 
of  natural  fubjedls ;  it  ought  only  to  be  enlifted  for  a  mort  and. 
limited  time ;  the  foldiers  alfo  mould  live  intermixed  with  the 
people ;  no  feparate  camp,  no  barracks,  no  inland  fortreffes  mould, 
be  allowed.  And  perhaps  it  might  be  ftill  better,  if,  by  difmifTincr 
a  ftated  number  and  enlifting  others  at  every  renewal  of  their 

»  Stat.  i  W.  &M.  ft.  2.  c.  2.  "  Sf   L.  1 1.  6, 


414  %%e    RIGHTS  BOOK  I. 

term,  a  circulation  could  be  kept  up  between  the  army  and  the 
people,  and  the  citizen  and  the  foldier  be  more  intimately  con- 
nected together. 

T  o  keep  this  body  of  troops  in  order,  an  annual  act  of  par- 
liament likewife  paffes,  "  to  punifh  mutiny  and  defertion,  and  for 
"  the  better  payment  of  the  army  and  their  quarters."  This  re- 
gulates the  manner  in  which  they  are  to  be  difperfed  among  the 
feveral  inn-keepers  and  victuallers  throughout  the  kingdom  ;  and 
eftablifhes  a  law  martial  for  their  government.  By  this,  among 
other  things,  it  is  enacted,  that  if  any  officer  and  foldier  mall 
excite,  or  join  any  mutiny,  or,  knowing  of  it,  fhall  not  give 
notice  to  the  commanding  officer ;  or  mall  defert,  or  lift  in  any 
other  regiment,  or  fleep  upon  his  poft,  or  leave  it  before  he  is 
relieved,  or  hold  correfpondence  with  a  rebel  or  enemy,  or  ftrike 
or  ufe  violence  to  his  fuperior  officer,  or  fhall  difobey  his  lawful 
commands  ;  fuch  offender  fhall  fuffer  fuch  punifhment  as  a  court 
martial  mall  inflict,  though  it  extend  to  death  itfelf. 

HOWEVER  expedient  the  moft  ftrict  regulations  may  be  in 
time  of  actual  war,  yet,  in  times  of  profound  peace,  a  little  re- 
laxation of  military  rigour  would  not,  one  fliould  hope,  be  pro- 
ductive of  much  inconvenience.  And,  upon  this  principle,  though 
by  our  {landing  laws  w  (ft'ill  remaining  in  force,  though  not  at- 
tended to)  defertion  in  time  of  war  is  made  felony,  without  be- 
nefit of  clergy,  and  the  offence  is  triable  by  a  jury  and  before  the 
judges  of  the  common  law  ;  yet,  by  our  militia  laws  before-men- 
tioned, a  much  lighter  punifhment  is  inflicted  for  defertion  in 
time  of  peace.  So,  by  the  Roman  law  alfo,  defertion  in  time  of 
war  was  punifhed  with  death,  but  more  mildly  in  time  of  tran- 
quillity x.  But  our  mutiny  act  makes  no  fuch  diftinction  :  for 
any  of  the  faults  above-mentioned  are,  equally  at  all  times, 
punifhable  with  death  itfeif,  if  a  court  martial  fhall  think  proper. 
This  difcretionary  power  of  the  court  martial  is  indeed  to  be 
guided  by  the  directions  of  the  crown  ;  which,  with  regard  to 

w  Stat.  iSHen.  VI.  c.  19.     2  &  3  Ed\v.  VI.  c.  2.  *  Ff.  49.  16.  5. 

military 


Ch.  13.  of    PERSONS.  415 

military  offences,  has  almofl  an  abfolute  legiflative  power.  "  His 
"  majelty,  fays  the  act,  may  form  articles  of  war,  and  constitute 
'*  courts  martial,  with  power  to  try  any  crime  by  fuch  articles, 
"  and  inflict  fuch  penalties  as  the  articles  direct."  A  vaft  and  moil 
important  trufl !  an  unlimited  power  to  create  crimes,  and  annex 
to  them  any  puniihments,  not  extending  to  life  or  limb  !  Thefe 
are  indeed  forbidden  to  be  inflicted,  except  for  crimes  declared  to 
be  fo  punilhable  by  this  act ;  which  crimes  we  have  juft  enumera- 
ted, and,  among  which,  we  may  obferve  that  any  difobedience  to 
lawful  commands  is  one.  Perhaps  in  fome  future  revifion  of  this 
act,  which  is  in  many  refpects  nattily  penned,  it  may  be  thought 
worthy  the  wifdom  of  parliament  to  afcertain  the  limits  of  mili- 
tary fubjection,  and  to  enact  exprefs  articles  of  war  for  the  go- 
vernment of  the  army,  as  is  done  for  the  government  of  the  navy  :. 
efpecially  as,  by  our  prefent  conftitution,  the  nobility  and  gentry  of 
the  kingdom,  who  ferve  their  country  as  militia  officers,  are  annually 
fubjected  to  the  fame  arbitrary  rule,  during  their  time  pf  exercife.. 

ONE  of  the  greatefl  advantages  of  our  Engliili  law  is,  that 
not  only  the  crimes  themfelves  which  it  punimes,  but  alib  the 
penalties  which  it  inflicts,  are  afcertained  and  notorious  :  no- 
thing is  left  to  arbitrary  difcretion:  the  king  by  his  judges  dif- 
penfes  what  the  law  has  previoufly  ordained;  but  is  not  himfelf 
the  legiflator.  How  much  therefore  is  it  to  be  regretted  that  a 
fet  of  men,  whofe  bravery  has  fo  often  preferved  'the  liberties  of 
their  country,  mould  be  reduced  to  a  ftate  of  fervitude  in  the 
midft  of  a  nation  of  freemen  !  for  fir  Edward  Coke  will  inform 
us y,  that  it  is  one  of  the  genuine  marks  of  fervitude,  to  have  the 
law,  which  is  our  rule  of  action,  either  concealed  or  precarious : 
"  mifera  eji  fervitus,  ubi  Jus  eft  <vagiirn  ant  incognitum,"  Nor  is 
this  flate  of  fervitude  quite  confiflent  with  the  maxims  of  found 
policy  obferved  by  other  free  nations.  For,  the  greater  the  general 
liberty  is  which  any  flate  enjoys,  the  more  cautious  has  it  ufually 
been  of  introducing  flavery  in  any  particular  order  or  profeffion. 
Thefe  men,  as  baron  Montefquieu  obferves z,  feeing  the  liberty 

y  4lnft.  332.  z  Sp.  L.  15.  12. 

which; 


4. 1 6  The    RIGHTS  BOOK  I, 

which  others  poflefs,  and  which  they  themfelves  are  excluded  from* 
are  apt  (like  eunuchs  in  the  eaftern  feraglios)  to  live  in  a  ftate  of 
perpetual  envy  and  hatred  towards  the  reft  of  the  community;  and 
indulge  a  malignant  pleafure  in  contributing  to  deftroy  thofe  pri- 
vileges, to  which  they  can  never  be  admitted.  Hence  have,many 
free  ftates,  by  departing  from  this  rule,  been  endangered  by  the 
revolt  of  their  flaves :  while,  in  abfolute  and  defpotic  govern- 
ments where  no  real  liberty  exifts,  and  confequently  no  invidious 
comparifons  can  be  formed,  fuch  incidents  are  extremely  rare. 
Two  precautions  are  therefore  advifed  to  be  obferved  in  all  prudent 
and  free  governments :  I .  To  prevent  the  introduction  of  flavery  at 
all:  or,  2.  If  it  be  already  introduced,  not  to  intruft  thofe  flaves 
with  arms ;  who  will  then  find  themfelves  an  overmatch  for  the 
freemen.  Much  lefs  ought  the  foldiery  to  be  an  exception  to  the 
people  in  general,  and  the  Only  ftate  of  fervitude  in  the  nation. 

BUT  as  foldiers,  by  this  annual  act,  are  thus  put  in  a  worfe 
condition  than  any  other  fubjects,  fo,  by  the  humanity  of  our 
ftanding  laws,  they  are  in  fome  cafes  put  in  a  much  better.  By 
ftatute  43  Eliz.  c.  3.  a  weekly  allowance  is  to  be  raifed  in  every 
county  for  the  relief  of  foldiers  that  are  fick,  hurt,  and  maimed  : 
not  forgetting  the  royal  hofpital  at  Chelfea  for  fuch  as  are  worn 
out  in  their  duty.  Officers  and  foldiers,  that  have  been  in  the 
king's  fervice,  are  by  feveral  ftatutes,  enacted  at  the  clofe  of  fe- 
veral  wars,  at  "liberty  to  ufe  any  trade  or  occupation  they  are  fit 
for,  in  any  town  in  the  kingdom  (except  the  two  univerfities) 
notwithftanding  any  ftatute,  cuftom,  or  charter  to  the  contrary. 
And  foldiers  in  actual  military  fervice  may  make  nuncupative  wills, 
and  difpofe  of  their  goods,  wages,  and  other  perfonal  chattels, 
without  thofe  forms,  folemnities,  and  expenfes,  which  the  law 
requires  in  other  cafes a.  Our  law  does  not  indeed  extend  this  pri- 
vilege fo  far  as  the  civil  law ;  which  carried  it  to  an  extreme  that 
borders  upon  the  ridiculous.  For  if  a  foldier,  in  the  article  of 
death,  wrote  any  thing  in  bloody  letters  on  his  fhield,  or  in  the 
duft  of  the  field  with  his  fword,  it  was  a  very  good  military  tefta- 

a  Stat.  29  Car.  II.  c.  3.     5  W.  III.  c.  21.  §.  6. 

rnentb. 


Ch.  13.  of    PERSONS.  417 

ment b.     And  thus  much  for  the  military  flate,  as  acknowleged 
by  the  laws  of  England. 

TH  E  maritime  ftate  is  nearly  related  to  the  former  ;  though 
much  more  agreeable  to  the  principles  of  our  free  conftitution. 
The  royal  navy  of  England  hath  ever  been  it's  greateft  defence 
and  ornament;  it  is  it's  antient  and  natural  ftrength ;  the  float- 
ing bulwark  of  the  ifland ;  an  army,  from  which,  however  ftrong 
and  powerful,  no  danger  can  ever  be  apprehended  to  liberty : 
and  accordingly  it  has  been  afliduoufly  cultivated,  even  from  the 
earlieft  ages.  To  fo  much  perfection  was  our  naval  reputation 
arrived  in  the  twelfth  century,  that  the  code  of  maritime  laws, 
which  are  called  the  laws  of  Oleron,  and  are  received  by  all  na- 
tions in  Europe  as  the  ground  and  fubftrudlion  of  all  their  marine 
constitutions,  was  confefledly  compiled  by  our  king  Richard  the 
firft,  at  the  ifle  of  Oleron  on  the  coaft  of  France,  then  part  of 
the  pofleffions  of  the  crown  of  England  c.  And  yet,  fo  vaftly  in- 
ferior were  our  anceftors  in  this  point  to  the  prefent  age,  that 
even  in  the  maritime  reign  of  queen  Elizabeth,  fir  Edward  Coke  d 
thinks  it  matter  of  boaft,  that  the  royal  navy  of  England  then 
confifted  of  three  and  thirty  fhips.  The  prefent  condition  of  our 
marine  is  in  great  meafure  owing  to  the  falutary  provifions  of  the 
ftatutes,  called  the  navigation-afts  ;  whereby  the  conftant  increafe 
of  Englifh  {hipping  and  feamen  was  not  only  encouraged,  but  ren- 
dered unavoidably  necefTary.  By  the  ftatute  5  Ric.  II.  c.  3.  in 
order  to  augment  the  navy  of  England,  then  greatly  diminifhed, 
it  was  ordained,  that  none  of  the  king's  liege  people  fhould  (hip 
any  merchandize  out  of  or  into  the  realm  but  only  in  mips  of  the 
king's  ligeance,  on  pain  of  forfeiture.  In  the  next  year,  by  ftatute 
6  Ric.  II.  c.  8.  this  wife  provifion  was  enervated,  by  only  obliging 
the  merchants  to  give  Englifh  mips  (if  able  and  fufficient)  the 
preference.  But  the  moil  beneficial  ftatute  for  the  trade  and  com- 

b  Si  milites  quid  in  cljpeo   Uteri's  fanguine  vohmtatem  jlalilem  ejje  oportet.  Cod.  6.  21.  15. 
/no  rutilantibus  aitaota'verint,  aut   in  pulvere          c  4  Inft.  144.     Coutumes  de  la  mer.  2. 
infcripferint  gladio  fuo,   ipfo  tempore    quo,  in          d  4  Inft.  50. 
pratlio,    vitae  fort  em  derelinquunt,   hujufmodi 

E  e  e  merce 


4i 8  The    RIGHTS  BOOK!. 

merce  of  thefe  kingdoms  is  that  navigation-aft,  the  rudiments  of 
which  were  firft  framed  in  1650  e,  with  a  narrow  partial  v*ew  : 
being  intended  to  mortify  the  fugar  iflands,  which  were  difaf- 
fedled  to  the  parliament  and  ftill  held  out  for  Charles  II,  by  flop- 
ping the  gainful  trade  which  they  then  carried  on  with  the  Dutch s ; 
and  at  the  fame  time  to  clip  the  wings  of  thofe  our  opulent  and 
afpiring  neighbours.  This  prohibited  all  mips  of  foreign  nations 
from  trading  with  any  Englifh  plantations  without  licence  from 
the  council  of  ftate.  In  1651  g  the  prohibition  was  extended  alfo 
to  the  mother  country  ;  and  no  goods  were  fuffered  to  be  imported 
into  England,  or  any  of  it's  dependencies,  in  any  other  than 
Englifh  bottoms  ;  or  in  the  mips  of  that  European  nation  of 
which  the  merchandize  imported  was  the  genuine  growth  or  ma- 
nufacture. At  the  restoration,  the  former  provilions  were  conti- 
nued, by  ftatute  12  Car.  II.  c.  18.  with  this  very  material  im- 
provement, that  the  mafter  and  three  fourths  of  the  mariners 
mall  alfo  be  Englim  fubjedls. 

MANY  laws  have  been  made  for  the  fupply  of  the  royal  navy 
with  feamen  ;  for  their  regulation  when  on  board  ;  and  to  confer 
privileges  and  rewards  on  them  during  and  after  their  fervice. 

i .  FIRST,  for  their  fupply.  The  power  of  impreffing  men 
for  the  fea  fervice  by  the  king's  commiflion,  has  been  a  matter 
of  fome  difpute,  and  fubmitted  to  with  great  reluctance  ;  though 
it  hath  very  clearly  and  learnedly  been  fhewn  by  fir  Michael 
Fofter  h,  that  the  practice  of  impreffing,  and  granting  powers  to 
the  admiralty  for  that  purpofe,  is  of  very  antient  date,  and  hath 
been  uniformly  continued  by  a  regular  feries  of  precedents  to  the 
prefent  time  :  whence  he  concludes  it  to  be  part  of  the  common 
law1.  The  difficulty  arifes  from  hence,  that  no  ftatute  has  ex- 
preflly  declared  this  power  to  be  in  the  crown,  though  many  of 
them  very  ftrongly  imply  it.  The  ftatute  2  Ric.  II.  c.  4.  fpeaks 

e  Scobell.  132.  k  Rep.  154. 

1  Mod.  Un.  Hift.  xli.  289.  '  See  alfo  Comb.  245. 

*  Scobell.  176. 

of 


Ch.  13.  of    PERSONS.  4.!^ 

of  mariners  being  arrefted  and  retained  for  the  king's  fervice,  as 
of  a  thing  well  known,  and  practifed  without  difpute -,  and  pro- 
vides a  remedy  againft  their  running  away.  By  a  later  ftatute  k,  if 
any  waterman,  who  ufes  the  river  Thames,  lhall  hide  himfelf 
during  the  execution  of  any  commiffion  of  preffing  for  the  king's 
fervice,  he  is  liable  to  heavy  penalties.  By  another1,  no  fifher- 
man  flvall  be  taken  by  the  queen's  commiffion  to  ferve  as  a  mari- 
ner ;  but  the  commiffion  mall  be  firft  brought  to  two  juftices  of 
the  peace,  inhabiting  near  the  fea  coaft  where  the  mariners  are 
to  be  taken,  to  the  intent  that  the  juftices  may  chufe  out  and  re- 
turn fuch  a  number  of  ablebodied  men,  as  in  the  commiffion  are 
contained,  to  ferve  her  majefty.  And,  by  others  m,  efpecial  pro- 
tections are  allowed  to  feamen  in  particular  circumftances,  to  pre- 
vent them  from  being  impreffed.  All  which  do  moft  evidently 
imply  a  power  of  impreffing  to  refide  fomewhere ;  and,  if  any 
where,  it  muft  from  the  fpirit  of  our  constitution,  as  well  as  from 
the  frequent  mention  of  the  king's  commiffion,  refide  in  the 
crown  alone. 

BUT,  befides  this  method  of  impreffing,  (which  is  only  de- 
fenfible  from  public  neceffity,  to  which  all  private  confiderations 
mull  give  way)  there  are  other  ways  that  tend  to  the  increafe  of 
feamen,  and  manning  the  royal  navy.  Pariflies  may  bind  out  poor 
boys  apprentices  to  mafters  of  merchantmen,  who  mall  be  pro- 
tected from  impreffing  for  the  firfl  three  years ;  and  if  they  are 
impreffed  afterwards,  the  mafters  mall  be  allowed  their  wages  " : 
great  advantages  in  point  of  wages  are  given  to  volunteer  feamen 
in  order  to  induce  them  to  enter  into  his  majefty's  fervice  ° :  and 
every  foreign  feaman,  who  during  a  war  mall  ferve  two  years  in 
any  man  of  war,  merchantman,  or  privateer,  is  naturalized  ipfo 
faffo  p.  About  the  middle  of  l»ng  William's  reign,  a  fcheme  was 
let  on  foot q  for  a  regiiler  of  feamen  to  the  number  of  thirty 

k  Stat.  z  &  3  Ph.  &  M.  c.  16.  n  Stat.  2  Ann.  c.  6. 

1  Stat.  5Eliz.  c.  5.  -  Stat.  I  Geo.  II.  ft.  2.  c.  14. 

m  Stat.  7  &  8  W.  III.  c.  21.  2  Ann.  c.  6.  P  Stat.    13  Geo.  II.  0.3. 

4&5Ann.c.i9.    13  Geo.  II.  c.  17.  fcfr.  1  Stat.  7  &  8  W.  III.  c.  21. 

E  e  e  2  thoufand, 


420  The    RIGHTS  BOOK  I. 

thoufand,  for  a  conftant  and  regular  fupply  of  the  king's  fleet ; 
with  great  privileges  to  the  registered  men,  and,  on  the  other 
hand,  heavy  penalties  in  cafe  of  their  non-appearance  when  called 
for:  but  this  registry,  being  judged  to  be  rather  a  badge  of  Sla- 
very,  was  abolished  by  Statute  9  Ann.  c.  21. 

2.  TH  E  method  of  ordering  feamen  in  the  royal  fleet,  and 
keeping  up  a  regular  difcipline  there,  is  directed  by  certain  exprefs 
rules,  articles,  and  orders,  firSt  enacted  by  the  authority  of  parlia- 
ment foon  after  the  reftoration  r;  but  fmce  new-modelled  and  al- 
tered, after  the  peace  of  Aix  la  Chapelle  %  to  remedy  fome  de- 
feds  which  were  of  fatal  confequence  in  conducting  the  preceding 
war.     In  thefe  articles  of  the  navy  almoSt  every  poffible  offence 
is  fet  down,    and  the  puniShment  thereof  annexed  :    in  which 
reSpect  the  feamen  have  much  the  advantage  over  their  brethren 
in  the  land  Service;  whofe  articles  of  war  are  not  enacted  by 
parliament,  but  framed  from  time  to  time  at  the  pleafure  of  the 
crown.     Yet  from  whence  this  distinction  arofe,  and  why  the 
executive  power,  which  is  limited  fo  properly  with  regard  to  the 
navy,  mould  be  fo  extenSive  with  regard  to  the  army,  it  is  hard 
to  aifign  a  reafon  :   unlefs  it  proceeded  from  the  perpetual  eSta- 
bliShment  of  the  navy,  which  rendered  a  permanent  law  for  their 
regulation  expedient;    and  the  temporary  duration  of  the  army, 
which  SubfiSted  only  from  year  to  year,  and  might  therefore  with 
lefs  danger  be  fubjected  to  difcretionary  government.   But,  what- 
ever was  apprehended  at  the  firSt  formation  of  the  mutiny  act, 
the  regular  renewal  of  our  {landing  force  at  the  entrance  of  every 
year  has  made  this  distinction  idle.    For,  if  from  experience  paSt 
we  may  judge  of  future  events,  the  army  is  now  laftingly  in- 
grafted into  the  British  constitution  ;  with  this  fingularly  fortunate 
circumftance,  that  any  branch  of  the  legislature  may  annually 
put  an  end  to  it's  legal  existence,  by  refufing  to  concur  in  it's 
continuance. 

'  Scat.  ?3Car.  II.  ft.  i.  e.g.  '  Star.  zzGeo.  II.  0.23. 

3 .  WITH 


Ch.  13.  of    PERSONS.  421 

3.  WITH  regard  to  the  privileges  conferred  on  failors,  they 
are  pretty  much  the  fame  with  thofe  conferred  on  foldiers  -,  with 
regard  to  relief,  when  maimed,  or  wounded,  or  fuperannuate, 
either  by  county  rates,  or  the  royal  hofpital  at  Greenwich  ;  with 
regard  alfo  to  the  exercife  of  trades,  and  the  power  of  making 
nuncupative  teftaments  :  and,  farther c,  no  feaman  aboard  his 
majefty's  mips  can  be  arrefted  for  any  debt,  unlefs  the  fame  be 
fworn  to  amount  to  at  leaft  twenty  pounds ;  though,  by  the 
annual  mutiny  act,  a  foldier  may  be  arrefted  for  a  debt  which* 
extends  to  half  that  value,  but  not  to  a  lefs  amount. 

1  Stat.  i  Geo  II.  ft.  2.  c.  1. 


422  I7os    RIGHTS  BOOK  I. 


CHAPTER     THE     FOURTEENTH. 
OF     MASTER     AND     SERVANT. 


HAVING    thus  commented    on  the  rights  and  duties  of 
perfons,  as  {landing  in  the  public  relations  of  magiftrates 
and  people,  the  method  I   have  marked   out  now  leads  me  to 
confider  their  rights  and  duties  in  private  oeconomical  relations. 

THE  three  great  relations  in  private  life  are,  i .  That  of  niaf- 
ter  and  fervant ;  which  is  founded  in  convenience,  whereby  a 
man  is  directed  to  call  in  the  afliftance  of  others,  where  his  own 
fkill  and  labour  will  not  be  fufficient  to  anfwer  the  cares  incum- 
bent upon  him.  2.  That  of  hujband  and  wife  ;  which  is  founded 
in  nature,  but  modified  by  civil  fociety  :  the  one  directing  man 
to  continue  and  multiply  his  fpecies,  the  other  prefcribing  the 
manner  in  which  that  natural  impulfe  mufl  be  confined  and  re- 
gulated. 3.  That  of  parent  and  child,  which  is  confequential  to 
that  of  marriage,  being  it's  principal  end  and  defign  :  and  it  is 
by  virtue  of  this  relation  that  infants  are  protected,  maintained, 
and  educated.  But,  fince  the  parents,  on  whom  this  care  is  pri- 
marily incumbent,  may  be  fnatched  away  by  death  or  otherwife, 
before  they  have  completed  their  duty,  the  law  has  therefore  pro- 
vided a  fourth  relation  ;  4.  That  of  guardian  and  ward,  which 
is  a  kind  of  artificial  parentage,  in  order  to  fupply  the  deficiency, 
whenever  it  happens,  of  the  natural.  Of  all  thefe  relations  in 
their  order. 

IN 


Ch.  14.  of    PERSONS.  423 

IN  dlfcufling  the  relation  of  majhr  and  feroant,  I  (hall,  firft, 
confider  the  feveral  forts  of  fervants,  and  how  this  relation  is 
created  and  deftroyed  :  fecondly,  the  effect  of  this  relation  with 
regard  to  the  parties  themfelves :  and,  laflly,  it's  effect  with  re- 
gard to  other  perfons. 

I.  As  to  the  feveral  forts  of  fervants  :  I  have  formerly  obfer- 
ved  a  that  pure  and  proper  flavery  does  not,  nay  cannot,  fubfift  in 
England  ;  fuch  I  mean,  whereby  an  abfolute  and  unlimited  power 
is  given  to  the  mafter  over  the  life  and  fortune  of  the  flave.  And 
indeed  it  is  repugnant  to  reafon,  and  the  principles  of  natural 
iaw,  that  fuch  a  ftate  mould  fubfift  any  where.  The  three  ori- 
gins of  the  right  of  flavery,  afligned  by  Juftinianb,  are  all  of  them, 
built  upon  falfe  foundations.  As,  firft,  flavery  is  held  to  arife 
"  jure  gentium"  from  a  ftate  of  captivity  in  war ;  whence  flaves 
are  called  mancipia,  quajl  rnanu  capti.  The  conqueror,  fay  the 
civilians,  had  a  right  to  the  life  of  his  captive  ;  and,  having  fpared 
that,  has  a  right  to  deal  with  him  as  he  pleafes.  But  it  is  an 
untrue  pofition,  when  taken  generally,  that,  by  the  law  of  na- 
ture or  nations,  a  man  may  kill  his  enemy :  he  has  only  a  right 
to  kill  him,  in  particular  cafes ;  in  cafes  of  abfolute  neceffity, 
for  felf-defence ;  and  it  is  plain  this  abfolute  necerTity  did  not 
fubfift,  fince  the  victor  did  not  actually  kill  him,  but  made  him 
prifoner.  War  is  itfelf  juftifiable  only  on  principles  of  felf-pre- 
fervation  ;  and  therefore  it  gives  no  other  right  over  prifoners, 
but  merely  to  difable  them  from  doing  harm  to  us,  by  confining 
their  perfons  :  much  lefs  can  it  give  a  right  to  kill,  torture,  abufe, 
plunder,  or  even  to  enflave,  an  enemy,  when  the  war  is  over. 
Since  therefore  the  right  of  making  flaves  by  captivity,  depends 
on  a  fuppofed  right  of  flaughter,  that  foundation  failing,  the  con- 
fequence  drawn  from  it  muft  fail  likewife.  But,  fecondly,  it  is 
faid  that  flavery  may  begin  "jure  civili ;"  when  one  man  fells 
himfelf  to  another.  This,  if  only  meant  of  contracts  to  ferve  or 

1  pag.  127.  jure  gentium,    aut  jure  civili  :   nafcuntur  ex 

b  Servi   aut  funt,    aut  nafcuntur:    f.ttnt     tuicittit  noftrit,    Iiifl.  i.  3.  4. 

work 


424  Tlie    RIGHTS  BOOK  I. 

work  for  another,  is  very  juft  :  but  when  applied  to  ftrift  flavery, 
in  the  fenfe  of  the  laws  of  old  Rome  or  modern  Barbary,  is  alfo 
impoflible.  Every  fale  implies  a  price,  a  quid  pro  quo,  an  equi- 
valent given  to  the  feller  in  lieu  of  what  he  transfers  to  the  buyer  : 
but  what  equivalent  can  be  given  for  life,  and  liberty,  both  of 
which  (in  abfolute  flavery)  are  held  to  be  in  the  mafter's  difpofal  ? 
His  property  alfo,  the  very  price  he  feems  to  receive,  devolves 
ipfo  faSlo  to  his  mailer,  the  inflant  he  becomes  his  flave.  In  this 
cafe  therefore  the  buyer  gives  nothing,  and  the  feller  receives  no- 
thing :  of  what  validity  then  can  a  fale  be,  which  deftroys  the 
very  principles  upon  which  all  fales  are  founded  ?  Laftly,  we  are 
told,  that  belides  thefe  two  ways  by  which  Haves  "jiunt,"  or  are 
acquired,  they  may  alfo  be  hereditary:  "fervi  nafcuntur ;"  the 
children  of  acquired  Haves  are,  jure  naturae,  by  a  negative  kind 
of  birthright,  flaves  alfo.  But  this,  being  built  on  the  two  former 
rights,  muft  fall  together  with  them.  If  neither  captivity,  nor  the 
fale  of  one's  felf,  can  by  the  law  of  nature  and  reafon  reduce  the 
parent  to  flavery,  much  lefs  can  they  reduce  the  offspring. 

UPON  thefe  principles  the  law  of  England  abhors,  and  will 
not  endure  the  exiftence  of,  flavery  within  this  nation  :  fo  that 
when  an  attempt  was  made  to  introduce  it,  by  ftatute  i  Edw.  VI. 
c.  3.  which  ordained,  that  all  idle  vagabonds  mould  be  made 
flaves,  and  fed  upon  bread,  water,  or  finall  drink,  and  refufe  meat ; 
fhould  wear  a  ring  of  iron  round  their  necks,  arms,  or  legs ;  and 
fhould  be  compelled  by  beating,  chaining,  or  otherwife,  to  per- 
form the  work  afllgned  them,  were  it  never  fo  vile ;  the  fpirit  of 
the  nation  could  not  brook  this  condition,  even  in  the  moft  aban- 
doned rogues;  and  therefore  this  ftatute  was  repealed  in  two  years 
afterwards  c.  And  now  it  is  laid  down d,  that  a  flave  or  negro,  the 
inftant  he  lands  in  England,  becomes  a  freeman ;  that  is,  the 
law  will  protect  him  in  the  enjoyment  of  his  perfon,  and  his 
property.  Yet,  with  regard  to  any  right  which  the  matter  may 
have  acquired  to  the  perpetual  fervice  of  John  or  Thomas,  this 
will  remain  exactly  in  the  fame  ftate  as  before  :  for  this  is  no 

c  Stat.  3  &  4  Edw.  VI.  c.  16.  d  Salk.  666. 

more 


Ch.  14.  of   PERSONS.  425 

more  than  the  fame  ftate  of  fubjedlion  for  life,  which  every  ap- 
prentice fubmits  to  for  the  fpace  of  feven  years,  or  fometimes 
for  a  longer  term.  Hence  too  it  follows,  that  the  infamous  and 
unchriftian  practice  of  withholding  baptifm  from  negro  fervants, 
left  they  mould  thereby  gain  their  liberty,  is  totally  without 
foundation,  as  well  as  without  excufe.  The  law  of  England  adts 
upon  general  and  extenfive  principles:  it  gives  liberty,  rightly 
understood,  that  is,  protection,  to  a  jew,  a  turk,  or  a  heathen, 
as  well  as  to  thofe  who  profefs  the  true  religion  of  Chrift ;  and 
it  will  not  diflblve  a  civil  obligation  between  mafter  and  fervant, 
on  account  of  the  alteration  of  faith  in  either  of  the  parties  : 
but  the  Have  is  entitled  to  the  fame  protection  in  England  before, 
as  after,  baptifm ;  and,  whatever  fervice  the  heathen  negro  owed 
to  his  American  mafter,  the  fame  is  he  bound  to  render  when 
brought  to  England  and  made  a  chriftian. 

i.  THE  firft  fort  of  fervants  therefore,  acknowleged  by  the 
laws  of  England,  are  menial  fervants ;  fo  called  from  being  intra 
moenia,  or  domeftics.  The  contract  between  them  and  their 
mafters  arifes  upon  the  hiring.  If  the  hiring  be  general  without 
any  particular  time  limited,  the  law  conftrues  it  to  be  a  hiring  for 
a  year6 ;  upon  a  principle  of  natural  equity,  that  the  fervant  mall 
ferve,  and  the  mailer  maintain  him,  throughout  all  the  revolu- 
tions of  the  refpective  feafons ;  as  well  when  there  is  work  to  be 
done,  as  when  there  is  notf :  but  the  contradt  may  be  made  for 
any  larger  or  fmaller  term.  All  fmgle  men  between  twelve  years 
old  and  fixty,  and  married  ones  under  thirty  years  of  age,  and  all 
fmgle  women  between  twelve  and  forty,  not  having  any  vifible 
livelihood,  are  compellable  by  two  juftices  to  go  out  to  fervice 
in  hufbandry  or  certain  fpecific  trades,  for  the  promotion  of  ho- 
neft  induftry :  and  no  mafter  can  put  away  his  fervant,  or  fer- 
vant leave  his  mafter,  after  being  fo  retained,  either  before  or  at 
the  end  of  his  term,  without  a  quarter's  warning  j  unlefs  upon 

e  Co.  Litt.  42.  «•  F.  N.  B.  168. 

F  f  f  reafonable 


426  "The    RIGHTS  BOOK!. 

reafonable  caufe  to  be  allowed  by  a  juftice  of  the  peace6:  but 
they  may  part  by  confent,  or  make  a  fpecial  bargain. 

2.  ANOTHER  fpecies  of  fervants  are  called  apprentices  (from 
apprendre,  to  learn)  and  are  ufually  bound  for  a  term  of  years,  by 
deed  indented  or  indentures,  to  ferve  their  mafters,  and  be  main- 
tained and  inftrudled  by  them.     This  is  ufually  done  to  perfons 
of  trade,  in  order  to  learn  their  art  and  myftery ;  and  fometimes 
very  large  fums  are  given  with  them,  as  a  premium  for  fuch  their 
inftruclion :  but  it  may  be  done  to  hufbandmen,  nay  to  gentle- 
men, and  others.    Andh  children  of  poor  perfons  may  be  ap- 
prenticed out  by  the  overfeers,  with  confent  of  two  juftices,  till 
twenty. four  years  of  age,  to  fuch  perfons  as  are  thought  fitting; 
who  are  alfo  compellable  to  take  them :  and  it  is  held,  that  gen- 
tlemen of  fortune,  and  clergymen,  are  equally  liable  with  others 
to  fuch  compulsion  ' :  for  which  purpofes  our  ftatutes  have  made 
the  indentures  obligatory,  even  though  fuch  parim-apprentice  be 
a  minorj.  Apprentices  to  trades  may  be  difcharged  on  reafonable 
caufe,  either  at  requeft  of  themfelves  or  mafters,  at  the  quarter 
feffions,  or  by  one  juftice,  with  appeal  to  the  feffionsk;  who 
may,   by  the  equity  of  the  ftatute,  if  they  think  it  reafonable, 
diredt  reftitution  of  a  ratable  mare  of  the  money  given  with  the 
apprentice1:    and  pariih  apprentices  may  be  difcharged  in  the 
fame  manner,    by  two  juftices1".     But  if  an   apprentice,  with 
whom  lefs  than  ten  pounds  hath  been  given,  runs  away  from  his 
mailer,  he  is  compellable  to  ferve  out  his  time  of  abfence,  or 
make  fatisfadlion  for  the  fame,  at  any  time  within  feven  years 
after  the  expiration  of  his  original  contract n. 

3 .  A  THIRD  fpecies  of  fervants  are  labourers,  who  are  only 
hired  by  the  day  or  the  week,  and  do  not  live  intra  moenia,  as 

*  Stat.  5  Eliz.  c.  4.  '  Stat.  5  Eliz.  c.  4.   43  Eliz.  c.  2.     Cro. 

k  Stat.  5  Eliz.  0.4.  43  Eliz.  c.  2.  ijac.  I.  Car.  179. 
c.  25.   7jac.  I.  c.  3.   8&9\V.  &M.  0.30.         k  Stat.  5  Eliz.  c.  4. 
2&3Ann.  c.  6.  4  Ann.   €.19.   17660.  II.         '  Salk.  67. 
c- 5-    .  m  Stat.  2oGeo.  II.  c.  19. 

'  Salk-  57-  49'-  •  Stat.  6Geo.III.  c.  26. 

part 


Ch.  14.  of    PERSONS.  427 

part  of  the  family ;  concerning  whom  the  ftatutes  before  cited " 
have  made  many  very  good  regulations ;  I .  Directing  that  all  per- 
fons  who  have  no  vifible  effects  may  be  compelled  to  work ; 
2.  Defining  how  long  they  muft  continue  at  work  in  fummer 
and  winter  :  3.  Punifhing  fuch  as  leave  or  defert  their  work: 
4.  Empowering  the  juftices  at  feflions,  or  the  fheriff  of  the 
county,  to  fettle  their  wages :  and  5.  Inflicting  penalties  on  fuch 
as  either  give,  or  exact,  more  wages  than  are  fo  fettled. 

4.  THERE  is  yet  a  fourth  fpecies  of  fervants,  if  they  may  be 
fo  called,  being  rather  in  a  fuperior,  a  ministerial,  capacity ;  fuch 
&sjtewards,  fa£lorst  and  bailiff's  :  whom  however  the  law  confi- 
ders  as  fervants  pro  tempore,  with  regard  to  fuch  of  their  acts,  as 
affect  their  matter's  or  employer's  property.  Which  leads  rne  to 
confider, 

II.  THE  manner  in  which  this  relation,  of  fervice,  affects  ei- 
ther the  mafter  or  fervant.  And,  firft,  by  hiring  and  fervice  for 
a  year,  or  apprenticefhip  under  indentures,  a  perfon  gains  a  fettle- 
ment  in  that  parifh  wherein  he  laft  ferved  forty  daysp.  In  the  next 
place  perfons,  ferving  as  apprentices  to  any  trade,  have  an  exclufive 
right  to  exercife  that  trade  in  any  part  of  England q.  This  law, 
with  regard  to  the  exclufive  part  of  it,  has  by  turns  been  looked 
upon  as  a  hard  law,  or  as  a  beneficial  one,  according  to  the  pre- 
vailing humour  of  the  times  :  which  has  occafioned  a  great  va- 
riety of  refolutions  in  the  courts  of  law  concerning  it ;  and  at- 
tempts have  been  frequently  made  for  it's  repeal,  though  hitherto 
without  fuccefs.  At  common  law  every  man  might  ufe  what 
trade  he  pleafed  ;  but  this  ftatute  reftrains  that  liberty  to  fuch  as 
have  ferved  as  apprentices :  the  adverfaries  to  which  provifion 
fay,  that  all  restrictions  (which  tend  to  introduce  monopolies)  are 
pernicious  to  trade ;  the  advocates  for  it  allege,  that  unfkilfulnefs 
in  trades  is  equally  detrimental  to  the  public,  as  monopolies. 
This  reafon  indeed  only  extends  to  fuch  trades,  in  the  exercife 

0  Stat.  5  Eliz.  c.  4.  6  Geo.  III.  c.  26.  *  Stat.  5  Eliz.  c.  4. 

P  See  pag.  364. 

F  f  f  2  whereof 


428  the    RIGHTS  BOOK!. 

whereof  fkill  is  required :  but  another  of  their  arguments  goes 
much  farther ;  viz.  that  apprenticeihips  are  ufeful  to  the  com- 
monwealth, by  employing  of  youth,  and  learning  them  to  be 
early  induflrious ;  but  that  no  one  would  be  induced  to  undergo 
a  feven  years  fervitude,  if  others,  though  equally  fkilful,  were 
allowed  the  fame  advantages  without  having  undergone  the  fame 
difcipline  :  and  in  this  there  feems  to  be  much  reafon.  However, 
the  refolutions  of  the  courts  have  in  general  rather  confined  than 
extended  the  reilriction.  No  trades  are  held  to  be  within  the  ila- 
tute,  but  fuch  as  were  in  being  at  the  making  of  it r :  for  tra- 
ding in  a  country  village,  apprenticeships  are  not  requifite  s :  and 
following  the  trade  feven  years  is  fufficient  without  any  binding  ; 
for  the  ilatute  only  fays,  the  perfon  muft  ferve  as  an  apprentice, 
and  does  not  require  an  actual  apprenticeihip  to  have  exiiled  ** 

A  MASTER  may  by  law  correct  his  apprentice  or  fervant  for 
negligence  or  other  mifbehaviour,  fo  it  be  done  with  moderation" : 
though,  if  the  mailer's  wife  beats  him,  it  is  good  caufe  of  de- 
parture w.  But  if  any  fervant,  workman,  or  labourer  aflaults  his 
mailer  or  dame,  he  mall  fuffer  one  year's  imprifonment,  and  other, 
open  corporal  puniihment,  not  extending  to  life  or  limb  x. 

BY  fervice  all  fervants  and  labourers,  except  apprentices,  be- 
come entitled  to  wages :  according  to  their  agreement,  if  menial 
fervants ;  or  according  to  the  appointment  of  the  fherift  or  fef- 
fions,  if  labourers  or  fervants  in  huibandry  :  for  the  ilatutes  for 
regulation  of  wages  extend  to  fuch  fervants  only  y  >  it  being  im- 
pofiible  for  any  magiflrate  to  be  a  judge  of  the  employment  of 
menial  fervants,  or  of  courfe  to  affefs  their  wages. 

III.  LET  us,  laftly,  fee  how  Grangers  may  be  affected  by  this 
relation  of  mailer  and  fervant :  or  how  a  mailer  may  behave  to- 

'  LordRaym.  514.  w  F.  N.  B.   168. 

5  iVentr.  51.    2Keb.583.  *  Stat.  5  Eliz.  €.4. 

'  Lord  Raym.  1179.  y  2  Jones.  47. 
•  i  Hawk.  P.  C.  130.  Lamb.  Eiren.  127. 

wards 


Ch.  14.  O/'PERSON  s.  429 

wards  others  on  behalf  of  his  fervant ;  and  what  a  fervant  may 
do  on  behalf  of  his  matter. 

AND,  firft,  the  mafter  may  maintain,  that  is,  abet  and  afiift 
his  fervant  in  any  action  at  law  againft  a  ftranger  :  whereas,,  in 
general,  it  is  an  offence  againft  public  juftice  to  encourage  fuits 
and  animofities,  by  helping  to  bear  the  expenfe  of  them,  and  is 
called  in  law  maintenance  z.  A  mafter  alfo  may  bring  an  aclion 
againft  any  man  for  beating  or  maiming  his  fervant ;  but  in  fuch 
cafe  he  muft  aflign,  as  a  fpecial  reafon  for  fo  doing,  his  own  da- 
mage by  the  lofs  of  His  fervice ;  and  this  lofs  muft  be  proved 
upon  the  trial a.  A  mafter  likewife  may  juftify  an  affault  in  de- 
fence of  his  fervant,  and  a  fervant  in  defence  of  his  mafter b :  the 
mafter,  becaufe  he  has  an  intereft  in  his  fervant,  not  to  be  de- 
prived of  his  fervice ;  the  fervant,.  becaufe  it  is  part  of  his  duty, 
for  which  he  receives  his  wages,  to  ftand  by  and  defend  his 
mafter c.  Alfo  if  any  perfon  do  hire  or  retain  my  fervant,  being 
in  my  fervice,  for  which  the  fervant  departeth  from  me  and  goeth 
to  ferve  the  other,  I  may  have  an  adtion  for  damages  againft  both 
the  new  mafter  and  the  fervant,  or  either  of  them  :  but  if  the 
new  mafter  did  not  know  that  he  is  my  fervant,  no  action  lies  -, 
anlefs  he  afterwards  refufe  to  reftore  him  upon  information  and 
demand d.  The  reafon  and  foundation  upon  which  all  this  doc- 
trine is  built,  feem  to  be  the  property  that  every  man  has  in  the 
fervice  of  his  domeftics ;  acquired  by  the  contract  of  hiring,  and 
purchafed  by  giving  them  wages. 

A  s  for  thofe  things  which  a  fervant  may  do  on  behalf  of  his 
mafter,  they  feem  all  to  proceed  upon  this  principle,  that  the 
mafter  is  anfwerable  for  the  adl  of  his  fervant,  if  done  by  his 
command,  either  expreffly  given,  or  implied  :  nam  quifacit  per 
alium,  facit  perfe e.  Therefore,  if  the  fervant  commit  a  trefpais 

2  2  Roll.  Abr.  115.  for  his  mafter,  a  parent  for  his  child,  and 

a  9  Rep.  113.  a,hufband  or  father  for  the  chaftity  of  his 

b  2  Roll.  Abr.  546.  wife  or  daughter. 

c  In.  like  manner,   by  the  laws  of  king  d  F.  N.  B.  167,  168. 

Alfred,  c.  38.  a  fervant  was  allowed  to  fight  e  4  Inft.  109.                                      ^y 


430  The    RIGHTS  BOOK!. 

by  the  command  or  encouragement  of  his  mafter,  the  mafter  mall 
be  guilty  of  it  :  not  that  the  fervant  is  excufed,  for  he  is  only  to 
obey  his  mafter  in  matters  that  are  honeft  and  lawful.  If  an  inn- 
keeper's fervants  rob  his  guefls,  the  mailer  is  bound  to  reftitutionf: 
for  as  there  is  a  confidence  repofed  in  him,  that  he  will  take  care 
to  provide  honeft  fervants,  his  negligence  is  a  kind  of  implied 
confent  to  the  robbery  ;  nam,  qui  non  probibet,  cum  prohibere  pof- 
fit,  jubet.  So  like  wife  if  the  drawer  at  a  tavern  fells  a  man  bad 
wine,  whereby  his  health  is  injured,  he  may  bring  an  action 
againft  the  mafter g :  for,  although  the  mafter  did  not  expreffly 
order  the  fervant  to  fell  it  to  that  perfon  in  particular,  yet  his 
permitting  him  to  draw  and  fell  it  at  all  is  impliedly  a  general 
command. 

IN  the  fame  manner,  whatever  a  fervant  is  permitted  to  do  in 
the  ufual  courfe  of  his  bufinefs,  is  equivalent  to  a  general  com- 
mand. If  I  pay  money  to  a  banker's  fervant,  the  banker  is  an- 
fwerable  for  it :  if  I  pay  it  to  a  clergyman's  or  a  phyfician's  fer- 
vant, whofe  ufual  bufinefs  it  is  not  to  receive  money  for  his  maf- 
ter, and  he  imbezzles  it,  I  muft  pay  it  over  again.  If  a  fteward 
lets  a  leafe  of  a  farm,  without  the  owner's  knowlege,  the  owner 
muft  ftand  to  the  bargain  ;  for  this  is  the  fteward's  bufinefs.  A 
wife,  a  friend,  a  relation,  that  ufe  to  tranfact  bufinefs  for  a  man, 
are  quoad  hoc  his  fervants ;  and  the  principal  muft  anfwer  for  their 
conduct :  for  the  law  implies,  that  they  act  under  a  general  com- 
mand j  and,  without  fuch  a  doctrine  as  this,  no  mutual  inter- 
courfe  between  man  and  man  could  fubfift  with  any  tolerable  con- 
venience. If  I  ufually  deal  with  a  tradefman  by  myfelf,  or  con- 
ftantly  pay  him  ready  money,  I  am  not  anfwerable  for  what  my 
fervant  takes  up  upon  truft ;  for  here  is  no  implied  order  to  the 
tradefman  to  truft  my  fervant :  but  if  I  ufually  fend  him  upon 
truft,  or  fometimes  on  truft  and  fometimes  with  ready  money,  I 
am  anfwerable  for  all  he  takes  up  ;  for  the  tradefman  cannot  pof- 
fibly  diftinguim  when  he  comes  by  my  order,  and  when  upon  his 
own  authority11. 

f  Noy's  max.  0.43.  h  Dr.  &  Stud.  d.  2.  €.42.     Noy's  max. 

8   i  Roll.  Abr.  95.  c.  44.  Jp 


Ch.  14.  of   PERSONS.  431 

IF  a  fervant,  laftly,  by  his  negligence  does  any  damage  to  a 
jftranger,  the  mafter  {hall  anfwer  for  his  neglect :  if  a  fmith's 
fervant  lames  a  horfe  while  he  is  moing  him,  an  action  lies  againft 
the  mafler,  and  not  againft  the  fervant.  But  in  thefe  cafes  the 
damage  muft  be  done,  while  he  is  actually  employed  in  the  maf- 
ter's  fervice ;  otherwife  the  fervant  (hall  anfwer  for  his  own  mif- 
behaviour.  Upon  this  principle,  by  the  common  law  *,  if  a  fer- 
vant kept  his  mafter's  fire  negligently,  fo  that  his  neighbour's 
houfe  was  burned  down  thereby,  an  action  lay  againft  the  maf- 
ter; becaufe  this  negligence  happened  in  his  fervice:  otherwife,, 
if  the  fervant,  going  along  the  ftreet  with  a  torch,  by  negligence 
fets  fire  to  a  houfe ;  for  there  he  is  not  in  his  mafter's  immediate 
fervice,  and  muft  himfelf  anfwer  the  damage  perfonally.  But 
now  the  common  law  is,  in  the  former  cafe,  altered  by  ftatute 
6  Ann.  c.  3.  which  ordains  that  no  action  mall  be  maintained. 
againft  any,  in  whofe  houfe  or  chamber  any  fire  fhall  acciden- 
tally begin ;  for  their  own  lofs  is  fufHcient  punifhment  for  their 
own  or  their  fervants'  careleffhefs.  But  if  fuch  fire  happens 
through  negligence  of  any  fervant  (whofe  lofs  is  commonly  very 
little)  fuch  fervant  mall  forfeit  ioo/,  to  be  distributed  among 
the  fufterers ;  and,  in  default  of  payment,  mall  be  committed  to 
fome  workhoufe  and  there  kept  to  hard  labour  for  eighteen 
months'".  A  mafter  is,  laftly,  chargeable  if  any  of  his  family 
layeth  or  cafteth  any  thing  out  of  his  houfe  into  the  ftreet  or 
common  highway,  to  the  damage  of  any  individual,  or  the  com- 
mon nufance  of  his  majefty's  liege  people ' :  for  the  mafter  hath 
the  fuperintendance  and  charge  of  all  his  houmold.  And  this 
alfo  agrees  with  the  civil  law m ;  which  holds,  that  the  pater 
familias,  in  this  and  limilar  cafes,  "  ob  alterius  culparn  tenetur,  Jive. 
"Jervi,  Jive  liber  i" 

1  Noy's  max.  c.  44.  not  able  to  pay,  was  to  fuffer  a  corporal 

k  Upon   a  fimilar  principle,  by  the  law  puniiliment. 

of  the  twelve  tables  at  Rome,  a  perfon  by  '  Noy's  max.   c.  44. 

whofe  negligence  any  fire  began  was  bound  "  Ff.  9.  3.  I.     In/I.  4.  5.  I. 
to  pay  double  to  the  fufferers  ;  or  if  he  was 

WE 


43 2  1%e    RIGHTS  BOOK!. 

WE  may  obferve,  that  in  all  the  cafes  here  put,  the  mafler 
may  be  frequently  a  lofer  by  the  truft  repofed  in  his  fervant,  but 
never  can  be  a  gainer  :  he  may  frequently  be  anfwerable  for  his 
fervant's  mifbehaviour,  but  never  can  melter  himfelf  from  pu- 
nifhment  by  laying  the  blame  on  his  agent.  The  reafon  of  this 
is  flill  uniform  and  the  fame  -,  that  the  wrong  done  by  the  fer- 
vant is  looked  upon  in  law  as  the  wrong  of  the  mafter  himfelf  -, 
and  it  is  a  ftanding  maxim,  that  no  man  fhall  be  allowed  to  make 
any  advantage  of  his  own  wrong. 


Ch,  15.  cf  PERSONS.  433 


CHAPTER     THE     FIFTEENTH. 
OF       HUSBAND       AND      WIFE. 


'  |  ^HE  fecond  private  relation  of  perfons  is  that  of  marriage, 
JL  which  includes  the  reciprocal  rights  and  duties  of  hufband 
and  wife ;  or,  as  moft  of  our  elder  law  books  call  them,  of  baron 
and  feme.  In  the  conlideration  of  which  I  mail  in  the  firfl  place 
enquire,  how  marriages  may  be  contracted  or  made ;  fliall  next 
point  out  the  manner  in  which  they  may  be  diflblved }  and. 
fhall,  laflly,  take  a  view  of  the  legal  effects  and  confequence  of 
marriage. 

I.  O  u  R  law  confiders  marriage  in  no  other  light  than  as  & 
civil  contract.  The  holinefs  of  the  matrimonial  flate  is  left  en- 
tirely to  the  ecclefiaftical  law  :  the  temporal  courts  not  having 
jurifdiction  to  coniider  unlawful  marriage  as  a  fin,  but  merely 
as  a.civil  inconvenience.  The  punifhment  therefore,  or  annulling, 
of  incefluous  or  other  unfcriptural  marriages,  is  the  province  of 
the  fpiritual  courts;  which  act  frofalute  animae3.  And,  taking 
it  in  this  civil  light,  the  law  treats  it  as  it  does  all  other  contracts ; 
allowing  it  to  be  good  and  valid  in  all  cafes,  where  the  parties  at 
the  time  of  making  it  were,  in  the  firfl  place,  willing  to  contract; 
fecondly,  able  to  contract ;  and,  laftly,  actually  did  contract,  in 
the  proper  forms  and  folemnities  required  by  law. 

a  Salk.  121. 

G  g  g  FIRST, 


434  2^*    RIGHTS  BOOK!, 

FIRST,  they  muft  be  willing  to  contract.  "  Confenfus,  non  con- 
"'  cubitus,  facit  mtptias,"  is  the  maxim  of  the  civil  law  in  this 
cafe b :  and  it  is  adopted  by  the  common  lawyers  %  who  indeed 
have  borrowed  (efpecially  in  antient  times)  almoft  all  their  notions 
of  the  legitimacy  of  marriage  from  the  canon  and  civil  laws. 

SECONDLY,  they  muft  be  able  to  contract.  In  general,  all 
perfons  are  able  to  contract  themfelves  in  marriage,  unlefs  they 
labour  under  fome  particular  difabilities,  and  incapacities.  What 
thofe  are,  it  will  here  be  our  bufmefs  to  enquire. 

Now  thefe  difabilities  are  of  two  forts  :  firft,  fuch  as  are  ca- 
nonical, and  therefore  fufficient  by  the  ecclefiaftical  laws  to  avoid 
the  marriage  in  the  fpiritual  court ;  but  thefe  in  our  law  only 
make  the  marriage  voidable,  and  not  ipfo  faSlo  void,  until  fen- 
tjnce  of  nullity  be  obtained.  Of  this  nature  are  pre-contract  5 
confanguinity,  or  relation  by  blood ;  and  affinity,  or  relation  by 
marriage ;  and  fome  particular  corporal  infirmities.  And  thefe 
canonical  difabilities  are  either  grounded  upon  the  exprefs  words 
of  the  divine  law,  or  are  confequences  plainly  deducible  from 
thence  :  it  therefore  being  finful  in  the  perfons,  who  labour  un- 
der them,  to  attempt  to  contract  matrimony  together,  they  are 
properly  the  object  of  the  ecclefiaftical  magiftrate's  coercion ;  in 
order  to  feparate  the  offenders,  and  inflict  penance  for  the  offence, 
frofalute  animarum.  But  fuch  marriages  not  being  void  ab  initio, 
but  voidable  only  by  fentence  of  feparation,  they  are  efteemed 
valid  to  all  civil  purpofes,  unlefs  fuch  feparation  is  actually  made 
during  the  life  of  the  parties.  For,  after  the  death  of  either  of 
them,  the  courts  of  common  law  will  not  fuffer  the  fpiritual  court 
to  declare  fuch  marriages  to  have  been  void  ;  becaufe  fuch  decla- 
ration cannot  now  tend  to  the  reformation  of  the  parties d.  And 
therefore  when  a  man  had  married  his  firft  wife's  fifter,  and  after 
her  death  the  bi/hop's  court  was  proceeding  to  annul  the  mar- 

b  Ff.  50.   17.  30.  d  Ibid. 

'  Co.  Litt.  33, 

riage 


Ch.  15.  of    PERSONS.  435 

riage  and  baftardize  the  ifiue,  the  court  of  king's  bench  granted 
a  prohibition  quoad  hoc ;  but  permitted  them  to  proceed  to  punifti 
the  hufband  for  inceft c.     Thefe  canonical  difabilities,  being  en- 
tirely the  province  of  the  ecclefiaftical  courts,  our  books  are  per- 
fectly filent  concerning  them.  But  there  are  a  few  ftatutes,  which 
ferve  as  directories  to  thofe  courts,  of  which  it  will  be  proper  to 
take  notice.    By  ftatute  32  Hen.  VIII.  c.  38.  it  is  declared,  "that 
all  perfons  may  lawfully  marry,  but  fuch  as  are  prohibited  by 
God's  law ;  and  that  all  marriages  contracted  by  lawful  perfons  in 
theface  of  the  church,  and  confummate  with  bodily  knowlege,  and 
fruit  of  children,  (hall  be  indiflbluble.  And  (becaufe  in  the  times 
of  popery  a  great  variety  of  degrees  of  kindred  were  made  im- 
pediments to  marriage,  which  impediments  might  however  be 
bought  off  for  money)  it  is  declared  by  the  fame  ftatute,  that  no- 
thing (God's  law  except)  (hall  impeach  any  marriage,  but  within 
the  Levitical  degrees ;  the  fartheft  of  which  is  that  between  uncle 
and  niece f.     By  the  fame  ftatute  all  impediments,  arifing  from 
pre-contracts  to  other  perfons,  were  abolifhed  and  declared  of 
none  effect,  unlefs  they  had  been  confummated  with  bodily  know- 
lege :  in  which  cafe  the  canon  law  holds  fuch  contract  to  be  a 
marriage  defafto.   But  this  branch  of  the  ftatute  was  repealed  by 
ftatute  2&  3  Edw.VI.  0.23.  How  far  the  act  of  26  Geo.  II.  0.33. 
(which  prohibits  all  fuits  in  ecclefiaftical  courts  to  compel  a  mar- 
riage, in  confequence  of  any  contract)  may  collaterally  extend 
to  revive  this  claufe  of  Henry  VIII's  ftatute,   and  abolim  the 
impediment  of  pre-contract,    I  leave  to  be  confidered  by  the 
canonifts. 

THE  other  fort  of  difabilities  are  thofe  which  are  created,  or 
-at  leaft  enforced,  by  the  municipal  laws.  And,  though  fome  of 
them  may  be  grounded  on  natural  law,  yet  they  are  regarded  by 
the  laws  of  the  land,  not  fo  much  in  the  light  of  any  moral  of- 
fence, as  on  account  of  the  civil  inconveniences  they  draw  after 
them.  Thefe  civil  difabilities  make  the  contract  void  ab  initio, 
and  not  merely  voidable  :  not  that  they  diflclve  a  contract  already 

e  Salk.  S4S.  f  Gilb.  Rep.  158. 

G  g  g  2  formed, 


RIGHTS  BOOK!. 

formed,  but  they  render  the  parties  incapable  of  forming  any 
contract  at  all :  they  do  not  put  afunder  thofe  who  are  joined  to- 
gether, but  they  previoufly  hinder  the  junction.  And,  if  any 
perfons  under  thefe  legal  incapacities  come  together,  it  is  a  me- 
retricious, and  not  a  matrimonial,  union. 

1 .  TH  E  firft  of  thefe  legal  difabilities  is  a  prior  marriage,  or 
having  another  hufband  or  wife  living ;  in  which  cafe,  belides  the 
penalties  confequent  upon  it  as  a  felony,  the  fecond  marriage  is 
to  all  intents  and  purpofes  void g :  polygamy  being  condemned 
both  by  the  law  of  the  new  teftament,  and  the  policy  of  all  pru- 
dent ftates,  efpecially  in  thefe  northern  climates.  And  Juftinian, 
even  in  the  climate  of  modern  Turkey,  is  exprefs  h,  that  "  duas 
"  uxores  eodem  tcmpore  habere  non  licet" 

2.  TH  E  next  legal  difability  is  want  of  age.    This  is  fufficient 
to  avoid  all  other  contracts,  on  account  of  the  imbecillity  of  judg- 
ment in  the  parties  contracting  j  a  fortiori  therefore  it  ought  to 
avoid  this,  the  moft  important  contract  of  any.     Therefore  if  a 
boy  under  fourteen,  or  a  girl  under  twelve  years  of  age,  marries, 
this  marriage  is  only  inchoate  and  imperfect ;  and,  when  either  of 
them  comes  to  the  age  of  confent  aforefaid,  they  may  difagree 
and  declare  the  marriage  void,  without  any  divorce  or  fentence  in 
the  fpiritual  court.    This  is  founded  on  the  civil  law1.      But  the 
canon  law  pays  a  greater  regard  to  the  conftitution,  than  the  age, 
of  the  parties1* :    for  if  they  are  battles  ad  matrimonium,  it  is  a 
good  marriage,  whatever  their  age  may  be.    And  in  our  law  it  is 
fo  far  a  marriage,  that,  if  at  the  age  of  confent  they  agree  to  con- 
tinue together,  they  need  not  be  married  again '.    If  the  hufband 
be  of  years  of  difcretion,  and  the  wife  under  twelve,  when  fhe 
comes  to  years  of  difcretion  he  may  difagree  as  well  as  fhe  may  : 
for  in  contracts  the  obligation  mufl  be  mutual ;   both  mufl  be 
bound,  or  neither :  and  fo  it  is,  vice  ver/a,  when  the  wife  is.  of 
years  of  difcretion,  and  the  hufband  under  m. 

£  Bro.^ir.  lit.  Eajiardy.  pi.  8.  k  Decretal.  I.  4.  ///.  2.  qtt.  3. 

k«T«/?.  I,  10.  6.  J  Co.  Litt.  79. 

1  Leon.  Covjiit.  109.  *  ibid.  2-  ANOTHER 


Ch.  15..  of    PERSONS,  437 

j.  ANOTHER  incapacity  arifes  from  want  of  confent  of  pa- 
rents  or  guardians.  By  the  common  law,  if  the  parties  them- 
felves  were  of  the  age  of  confent,  there  wanted  no  other  concur- 
rence to  make  the  marriage  valid  :  and  this  was  agreeable  to  the 
canon  law.  But,  by  feveral  Statutes ",  penalties  of  ioo/.  are  laid 
on  every  clergyman  who  marries  a  couple  either  without  publica- 
tion of  banns  (which  may  give  notice  to  parents  or  guardians)  or 
without  a  licence,  to  obtain  which  the  confent  of  parents  or 
guardians  muft  be  fworn  to.  And  by  the  ftatute  4&  5  Ph.  &  M. 
c.  8*.  whofoever  marries  any  woman  child  under  the  age  of  fixteen 
years,  without  confent  of  parents  or  guardians,  (hall  be  fubjecT:  to 
fine,  or  five  years  imprifonment :  and  her  eftate  during  the  huf- 
band's  life  {hall  go  to  and  be  enjoyed  by  the  next  heir.  The  civil 
law  indeed  required  the  confent  of  the  parent  or  tutor  at  all  ages ; 
unlefsthe  children  were  emancipated,  or  outof  the  parents  power0: 
and,  if  fuch  confent  from  the  father  was  wanting,  the  marriage 
was  null,  and  the  children  illegitimate p ;  but  the  confent  of  the 
mother  or  guardians,  if  unreafohably  withheld,  might  be  redreffed 
and  fupplied  by  the  judge,  or  the  prefident  of  the  province*1: 
and  if  the  father  was  non  compos,  a  fimilar  remedy  was  given7... 
Thefe  provifions  are  adopted  and  imitated  by  the  FrencH  and 
Hollanders,  with  this  difference  :  that  in  France  the  fons  cannot 
marry  without  confent  of  parents  till  thirty  years  of  age,  nor  the 
daughters  till  twenty  five s ;  and  in  Holland,  the  fons  are  at  their 
own  dilpofal  at  twenty  five,,  and  the  daughters  at  twenty'.  Thus 
hath  ftood,  and  thus  at  prefent  ftands,  the  law  in  other  neighbour- 
ing countries.  And  it  has  lately  been  thought  proper  to  introduce 
fomewhat  of  the  fame  policy  into  our  laws,  by  ftatute  26  Geo.  II. 
c.  33.  whereby  it  is  enafted,  that  all  marriages  celebrated  by  li- 
cence (for  banns  fuppofe  notice)  where  either  of  the  parties  is. 

n  6&7Will.  III.c.6.  7&8W.III.  c.  35.  '  Inft.  i.  10.  i. 

loAnn.  c.  19.  s  Domat,  of  Dowries.   §.2.     MonteTq, 

"  Ff.  23.  2.  2,  fcf  18,  Sp.  L.  23.  7. 

*  Ff.  I.  5.  1 1.  *  fiuni'its  in  /«/?.  I.  i.  t.  10. 
i  Cod.  5.  4.  i,  y  20, 

under 


43  8  The    RIGHTS  BOOK!. 

under  twenty-one,  (not  being  a  widow  or  widower,  who  are 
fuppofed  emancipated)  without  the  confent  of  the  father,  or,  if 
he  be  not  living,  of  the  mother  or  guardians,  fhall  be  abfolutely 
void.  A  like  provifion  is  made  as  in  the  civil  law,  where  the 
mother  or  guardian  is  non  compos,  beyond  fea,  or  unreafonably 
froward,  to  difpenfe  with  fuch  confent  at  the  difcretion  of  the 
lord  chancellor :  but  no  provifion  is  made,  in  cafe  the  father  mould 
labour  under  any  mental  or  other  incapacity.  Much  may  be,  and 
much  has  been,  faid  both  for  and  againft  this  innovation  upon  our 
antient  laws  and  conftitutkm.  On  the  one  hand,  it  prevents  the 
clandefline  marriage  of  minors,  which  are  often  a  terrible  incon- 
venience to  thofe  private  families  wherein  they  happen.  On  the 
other  hand,  reftraints  upon  marriages,  efpecially  among  the  lower 
clafs,  are  evidently  detrimental  to  the  public,  by  hindering  the 
encreafe  of  people  ;  and  to  religion  and  morality,  by  encouraging 
licentioufnefs  and  debauchery  among  the  fingle  of  both  fexes ; 
and  thereby  deftroying  one  end  of  fociety  and  government,  which 
is,  concubitu  prolubcre  vago.  And  of  this  laft  inconvenience  the 
Roman  laws  were  fo  fenfible,  that  at  the  fame  time  that  they  for- 
bad marriage  without  the  confent  of  parents  or  guardians,  they 
were  lefs  rigorous  upon  that  very  account  with  regard  to  other 
reftraints :  for,  if  a  parent  did  not  provide  a  hufband  for  his 
daughter,  by  the  time  me  arrived  at  the  age  of  twenty  five,  and 
me  afterwards  made  a  flip  in  her  conduct,  he  was  not  allowed  to 
difinherit  her  upon  that  account ;  "  qiiia  non  fua  culpa,  fed  pa- 
,"  rentum,  id  comml/iJJ'e  cognofcitur  V 

4.  A  FOURTH  incapacity  is  want  of  reafon ;  without  a  com- 
petent (hare  of  which,  as  no  other,  fo  neither  can  the  matrimo- 
nial contract,  be  valid  w.  It  was  formerly  adjudged,  that  the  ifTue 
of  an  idiot  was  legitimate,  and  confequently  that  his  marriage  was 
valid.  A  ftrange  determination  !  fmce  confent  is  abfolutely  re- 
quifite  to  matrimony,  and  .neither  idiots  nor  lunatics  are  capable 
of  confenting  to  any  thing.  And  therefore  the  civil  law  judged 
much  more  fenfibly,  when  it  made  fuch  deprivations  of  reafon  a 

u  Nov.  115.  §.  n.  w  i  Roll.  Abr.  357. 

previous 


Ch,  15.  of    PERSONS.  439 

previous  impediment;  though  not  a  caufe  of  divorce,  if  they 
happened  after  marriage  r.  And  modern  refolutions  have  adhered 
to  the  reafon  of  the  civiHaw,  by  determining  y  that  the  marriage 
of  a  lunatic,  not  being  in  a  lucid  interval,  was  abfolutely  void. 
But  as  it  might  be  difficult  to  prove  the  exact  ftate  of  the  party's 
mind  at  the  actual  celebration  of  the  nuptials,  upon  this  account 
( concurring  with  fome  private  family z  reafons )  the  flatute 
i5Geo.  II.  c.  30.  has  provided,  that  the  marriage  of  lunatics 
and  perfons  under  phrenzies  (if  found  lunatics  under  a  commif- 
fion,  or  committed  to  the  care  of  truftees  by  any  act  of  parlia- 
ment) before  they  are  declared  of  found  mind  by  the  lord  chan- 
cellor or  the  majority  of  fuch  truftees,  (hall  be  totally  void. 

L  A  s  T  LY,  the  parties  muft  not  only  be  willing,  and  able  to 
contract,  but  actually  mufl  contract  themfelves  in  due  form  of 
law,  to  make  it  a  good  civil  marriage.  Any  contract  made,  per 
•verba  de  praefenti,  or  in  words  of  the  prefent  tenfe,  and  in  cafe 
of  cohabitation  per  verba  de  futuro  alfo,  between  perfons  able  to 
contract,  was  before  the  late  act  deemed  a  valid  marriage  to  many 
purpofes ;  and  the  parties  might  be  compelled  in  the  fpiritual 
courts  to  celebrate  it  in  facie  efdejlae.  But  thefe  verbal  contracts 
are  now  of  no  force,  to  compel  a  future  marriage  a.  Neither  is 
any  marriage  at  prefent  valid,  that  is  not  celebrated  in  fome  parifli 
church  or  public  chapel,  unlefs  by  difpenfation  from  the  arch- 
bifhop  of  Canterbury.  It  muft  alfo  be  preceded  by  publication 
of  banns,  or  by  licence  from  the  fpiritual  judge.  Many  other 
formalities  are  likewife  prefcribed  by  the  act  -,  the  neglect  of 
which,  though  penal,  does  not  invalidate  the  marriage.  It  is 
held  to  be  alfo  eflential  to  a  marriage,  that  it  be  performed  by  a 
perfbn  in  orders  b ',  though  the  intervention  of  a  prieft  to  folem- 
nize  this  contract  is  merely  juris  po/ttivi,  and  not  juris  naturalise 
aut  divini :  it  being  faid  that  pope  Innocent  the  third  was  the 
firft  who  ordained  the  celebration  of  marriage  in  the  church  c$, 

*  Ff.  23.  tit.  i .  /.  8.  y  tit.  2.  /.  1 6.  3  Stat.  26  Geo.  II.  c.  33. 

1  Morrifon's  cafe,  coram  Delegat.  b  Salk.  119. 

2  See  private  ads  23660.  II.  c.  6;  e  Moor.  170. 

before- 


440  The    RIGHTS  BOOK!. 

before  which  it  was  totally  a  civil  contrad.  And,  in  the  times 
of  the  grand  rebellion,  all  marriages  were  performed  by  the 
juftices  of  the  peace  ;  and  thefe  marriages  were  declared  valid, 
without  any  frefh  folemnization,  by  flatute  12  Car.  II.  c.  33. 
But,  as  the  law  now  ftands,  we  may  upon  the  Whole  colled!:,  that 
no  marriage  by  the  temporal  law  is  ipfo  faSto  void,  that  is  cele- 
brated by  a  perfon  in  orders, —  in  a  parifh  church  or  public 
chapel  (or  elfewhere,  by  fpecial  difpenfation )  —  in  pursuance 
of  banns  or  a  licence,  —  between  frngle  perfons,  —  confenting, 
—  of  found  mind,  —  and  of  the  age  of  twenty  one  years  ;  — or 
of  the  age  .of  fourteen  in  males  and  twelve  in  females,  with 
confent  of  parents  or  guardians,  or  without  it,  in  cafe  of  widow- 
hood. And  no  marriage  is  voidable  by  the  eccleliaflical  law,  after 
the  death  of  either  of  the  parties  j  nor  during  their  lives,  unlefs 
for  the  canonical  impediments  of  pre-contraci,  if  that  indeed  ftill 
exifls  j  of  confanguinity  j  and  of  affinity,  or  corporal  imbecillity, 
fubfifting  previous  to  the  marriage. 

II.  I  A  M  next  to  confider  the  manner  in  which  marriages 
may  be  diflblved  ;  and  this  is  either  by  death,  or  divorce.  There 
are  two  kinds  of  divorce,  the  one  total,  the  other  partial  j  the 
one  a  vinculo  matrimonn,  the  other  merely  a  menfa  et  thoro.  The 
total  divorce,  a  vinculo  matrimonij9  muft  be  for  fome  of  the  .ca- 
nonical caufes  of  impediment  before-mqntioned ;  and  thofe,  exifl- 
ing  before  the  marriage,  as  is  always  the  cafe  in  confanguinity  j 
not  fupervenient,  or  anting  afterwards,  as  may  be  the  cafe  in  af- 
finity or  corporal  imbecillity.  For  in  cafes  of  total  divorce,  the 
marriage  is  declared  null,  as  having  been  abfolutely  unlawful  ab 
initio  ;  and  the  parties  are  therefore  feparated  pro  faiute  anima- 
rum :  for  which  reafon,  as  was  before  obferved,  no  divorce  can 
be  obtained,  but  during  the  life  of  the  parties.  The  iffue  of  fuch 
marriage,  as  is  thus  entirely  dillblved,  are  baftards d. 

DIVORCE  a  menfa  et  thoro  is  when  the  marriage  is  juft  and 
lawful  ab  initio,  and  therefore  the  law  is  tender  of  diffolving  it ; 

*  Co.  Litt.  235. 

but, 


Ch.  15.  of    PERSONS.  441 

but,  for  fome  fupervenient  caufe,  it  becomes  improper  or  impoflible 
for  the  parties  to  live  together :  as  in  the  cafe  of  intolerable  ill 
temper,  or  adultery,  in  either  of  the  parties.  For  the  canon  law, 
which  the  common  law  follows  in  this  cafe,  deems  fo  highly  and 
with  fuch  myfterious  reverence  of  the  nuptial  tie,  that  it  will  not 
allow  it  to  be  unloofed  for  any  caufe  whatfoever,  that  arifes  after 
the  union  is  made.  And  this  is  faid  to  be  built  on  the  divine  re- 
vealed law  ;  though  that  expreflly  afligns  incontinence  as  a  caufe, 
and  indeed  the  only  caufe,  why  a  man  may  put  away  his  wife 
and  marry  another6.  The  civil  law,  which  is  partly  of  pagan 
original,  allows  many  caufes  of  abfolute  divorce ;  and  fome  of 
them  pretty  fevere  ones,  (as  if  a  wifs  goes  to>the  theatre  or  the 
public  games,  without  the  knowlege  and  confent  of  the  hufband  f) 
but  among  them  adultery  is  the  principal,  and  with  reafon  named 
the  firfl g.  But  with  us  in  England  adultery  is  only  a  caufe  of  fe- 
paration  from  bed  and  board h:  for  which  the  beft  reafon  that 
can  be  given,  is,  that  if  divorces  were  allowed  to  depend  upon 
a  matter  within  the  power  of  either  the  parties,  they  would  pro- 
bably be  extremely  frequent  j  as  was  the  cafe  when  divorces  were 
allowed  for  canonical  difabilities,  on  the  mere  confeffion  of  the 
parties',  which  is  now  prohibited  by  the  canons k.  However, 
divorces  a  -vinculo  matrimonii,  for  adultery,  have  of  late  years  been 
frequently  granted  by  aft  of  parliament. 

I  N  cafe  of  divorce  a  menfa  et  thoro,  the  law  allows  alimony  to 
the  wife ;  which  is  that  allowance,  which  is  made  to  a  woman 
for  her  fupport  out  of  the  hufband's  eftate  -,  being  fettled  at  the 
difcretion  of  the  ecclefiaftical  judge,  on  confideration  of  all  the 
circumftances  of  the  cafe.  This  is  fometimes  called  her  ejiovers ; 
for  which,  if  he  refufes  payment,  there  is  (befides  the  ordinary 
procefs  of  excommunication)  a  writ  at  common  law  de  ejloveriis 
habendis,  in  order  to  recover  it '.  It  is  generally  proportioned  to 

f  Matt.  xix.  9.  '  2  Mod.  314. 

i  Nov.  117.  k  Can.  1603.  c-  I05- 

f  Cod.  5.  17.  8.  '   i  Lev.  6. 

h  Moor.  683. 

H  h  h  the 


442  The    RIGHTS  BOOK!. 

the  rank  and  quality  of  the  parties.      But  in  cafe  of  elopement, 
and  living  with  an  adulterer,  the  law  allows  her  no  alimony  m. 

III.  HAVING  thus  fhewn  how  marriages  may  be  made,  or 
difTolved,  I  come  now,  laftly,  to  fpeak  of  the  legal  confequences 
of  fuch  making,  or  diffolution. 

B  Y  marriage,  the  hufband  and  wife  are  one  perfon  in  law  n  : 
that  is,  the  very  being  or  legal  exiflence  of  the  woman  is  fuf- 
pended  during  the  marriage,  or  at  leafl  is  incorporated  and  con- 
iblidated  into  that  of  the  hufband  :  under  whole  wing,  protection, 
and  cover,  me  performs  every  thing ;  and  is  therefore  called  in 
our  law-french  a  feme-covert,  foemina  viro  co-operta  ;  is  faid  to  be 
covert-baron,  or  under  the  protection  and  influence  of  her  hufband, 
her  baron,  or  lord  ;  and  her  condition  during  her  marriage  is  called 
her  coverture.  Upon  this  principle,  of  an  union  of  perfon  in  huf- 
band and  wife,  depend  almoft  all  the  legal  rights,  duties,  and  dif- 
abilities,  that  either  of  them  acquire  by  the  marriage.  I  fpeak 
not  at  prefent  of  the  rights  of  property,  but  of  fuch  as  are  merely 
perfonal.  For  this  reafon,  a  man  cannot  grant  any  thing  to  his 
wife,  or  enter  into  covenant  with  her  ° :  for  the  grant  would  be 
to  fuppofe  her  feparate  exiflence ;  and  to  covenant  with  her,  would 
be  only  to  covenant  with  himfelf:  and  therefore  it  is  alfo  gene- 
rally true,  that  all  compacts  made  between  hulband  and  wife,  when 
fingle,  are  voided  by  the  intermarriage p.  A  woman  indeed  may 
be  attorney  for  her  hufband q ;  for  that  implies  no  feparation  from, 
but  is  rather  a  reprefentation  of,  her  lord.  And  a  hufband  may  alfo 
bequeath  any  thing  to  his  wife  by  will ;  for  that  cannot  take  ef- 
fect till  the  coverture  is  determined  by  his  death r.  The  hufband 
is  bound  to  provide  his  wife  with  necefTaries  by  law,  as  much  as 
himfelf;  and  if  me  contracts  debts  for  them,  he  is  obliged  to 
pay  them5;  but,  for  any  thing  befides  neceflaries,  he  is  not  charge- 
able '.  Alfo  if  a  wife  elopes,  and  lives  with  another  man,  the 

m  Cowel.  tit.  Alimony.  *  F.  N.  B.  27. 

11  Co.  Litt.  112.  r  Co.  Litt.  112. 

•  Hid.  s  Salk.  1 1 8. 

*  Cro.  Car.  551,  '  i  sid.  120.  hufband 


Ch.  15.  of    PERSONS.  443 

hufband  is  not  chargeable  even  for  necefiaries u ;  at  leaft  if  the 
perfon,  who  furnifhes  them,  is  fufficiently  apprized  of  her  elope- 
ment'". If  the  wife  be  indebted  before  marriage,  the  hufband  is 
bound  afterwards  to  pay  the  debt ;  for  he  has  adopted  her  and 
her  circumftances  together x.  If  the  wife  be  injured  in  her  per- 
fon or  her  property,  fhe  can  bring  no  action  for  redrefs  without 
her  hufband's  concurrence,  and  in  his  name,  as  well  as  her  own y : 
neither  can  fhe  be  fued,  without  making  the  hufband  a  defen- 
dant z.    There  is  indeed  one  cafe  where  the  wife  fhall  fue  and  be 
fued  as  a  feme  fole,  viz.  where  the  hufband  has  abjured  the  realm, 
or  is  banifhed  a :  for  then  he  is  dead  in  lawj  and,   the  hufband 
being  thus  difabled  to  fue  for  or  defend  the  wife,  it  would  be 
moft  unreafonable  if  fhe  had  no  remedy,  or  could  make  no  de- 
fence at  all.     In  criminal  profecutions,  it  is  true,  the  wife  may 
be  indidled  and  punifhed  feparately b ;  for  the  union  is  only  a  civil 
union.    But,  in  trials  of  any  fort,  they  are  not  allowed  to  be  evi- 
dence for,  or  againft,  each  other c :  partly  becaufe  it  is  impoflible 
their  teftimony  fhould  be  indifferent ;  but  principally  becaufe  of 
the  union  of  perfon  :  and  therefore,  if  they  were  admitted  to  be 
witneffes  for  each  other,   they  would  contradidt  one  maxim  of 
law,  "  nemo  in  propria  caufa  tejlis  effe  debet ;"  and  if  againft  each 
other,  they  would  contradidl:  another  maxim,   "nemo  tenetur  fe- 
"  ipfum  accufare"    But  where  the  offence  is  diredtly  againft  the 
perfon  of  the  wife,  this  rule  has  been  ufually  difpenfed  with d : 
and  therefore,  by  ftatute  3  Hen.  VII.  c.  2.  in  cafe  a  woman  be 
forcibly  taken  away,  and  married,  fhe  may  be  a  witnefs  againft 
fuch  her  hufband,  in  order  to  convidt  him  of  felony.  For  in  this 
cafe  fhe  can  with  no  propriety  be  reckoned  his  wife ;  becaufe  a 
main  ingredient,  her  confent,  was  wanting  to  the  contradt :  and 
alfo  there  is  another  maxim  of  law,  that  no  man  fhall  take  ad- 
vantage of  his  own  wrong ;  which  the  ravifher  here  would  do, 

u  Stra.  647.  b.  i.  c.  21.) 

w  i  Lev.  5.  =>  Co.  Litt.  133. 

»  3  Mod.  1 86.  b  i  Hawk.  P.  C.  3. 

*  Salk.  119.     i  Roll.  Abr.  347.  c  2  Haw.  P.  C.  431. 

z  i  Leon.  312.  This  was  alfo  the praftice  d  State  trials, vol.  i.  Lord  Audley's  cafe, 

in   the  courts  of  Athens.     (Pott.  Antiqu.  Stra.  633. 

H  h  h  2  if 


444  ^Je    RIGHTS  BOOK!. 

if  by  forcibly  marrying  a  woman,  he  could  prevent  her  from 
being  a  witnefs,  who  is  perhaps  the  only  witnefs,  to  that  very 
fa«fti 

I  N  the  civil  law  the  hufband  and  the  wife  are  confidered  as  two 
diftindl  peribns ;  and  may  have  feparate  eftates,  contracts,  debts, 
and  injuries6:  and  therefore,  in  our  ecclefiaftical  courts,  a  wo- 
man may  fue  and  be  fued  without  her  hufband  f. 

B  u  T,  though  our  law  in  general  confiders  man  and  wife  as 
one  perfon,  yet  there  are  fome  inftances  in  which  fhe  is  feparately 
confidered  ;  as  inferior  to  him,  and  adting  by  his  compulfion. 
And  therefore  all  deeds  executed,  and  adls  done,  by  her,  during 
her  coverture,  are  void ;  except  it  be  a  fine,  or  the  like  matter 
of  record,  in  which  cafe  me  muft  be  folely  and  fecretly  exami- 
ned, to  learn  if  her  adl  be  voluntary 6.  She  cannot  by  will  devife 
lands  to  her  hufband,  unlefs  under  fpecial  circumftances ;  for  at 
the  time  of  making  it  (he  is  fuppofed  to  be  under  his  coercion  h. 
And  in  fome  felonies,  and  other  inferior  crimes,  committed  by 
her,  through  conftraint  of  her  hufband,  the  law  excufes  her '  r 
but  this  extends  not  to  treafon  or  murder* 

THE  hufband  alfo  (by  the  old  law)  might  give  his  wife  mo- 
derate correction  k.  For,  as  he  is  to  anfwer  for  her  mifbehaviour, 
the  law  thought  it  reafonable  to  intruft  him  with  this  power  of 
reflraining  her,  by  domeftic  chaftifement,  in  the  fame  moderation 
that  a  man  is  allowed  to  correct  his  fervants  or  children  ;  for 
whom  the  mafter  or  parent  is  alfo  liable  in  fome  cafes  to  anfwer. 
But  this  power  of  correction  was  confined  within  reafonable 
bounds' ;  and  the  hufband  was  prohibited  from  ufing  any  violence 
to  his  wife,  aliter  quam  ad  vimm,  ex  caufa  regiminu  et  cajilgattonis 
uxoris  fuae,  Hdte  et  rationabiliter  pertinet m.  The  civil  law  gave 

e  Cod.  4.  12.  i.  !  i  Hawk.  P.  C.  2. 

'  2  Roll.  Abr.  298.  k  Ibid.  130. 

*  Litt.  §.  669,  670.  '  Moor.  874, 

k  Co.  Litt.  ii2.  »  E.  N.B.  80, 

the 


Ch.  15.  of    P  E  R  s  o  N  s .  445 

the  hufband  the  fame,  or  a  larger,  authority  over  his  wife ;  allow- 
ing him,  for  fome  mifdemefnors,  flagellis  et  fujllbus  acriter  ver- 
Berare  uxorem  ;  for  others,  only  modicarn  cajligationem  adhibere  ". 
But,  with  us,  in  the  politer  reign  of  Charles  the  fecond,  this 
power  of  correction  began  to  be  doubted  ° :  and  a  wife  may  now 
have  fecurity  of  the  peace  againft  her  hufband p ;  or,  in  return,  a 
hufband  againft  his  wife  q.  Yet  the  lower  rank  of  people,  who 
were  always  fond  of  the  old  common  law,  ftill  claim  and  exert 
their  antient  privilege  :  and  the  courts  of  law  will  ftill  permit  a 
hufband  to  reftrain  a  wife  of  her  liberty,  in  cafe  of  any  grofs 
mifbehaviour  r. 

TH  E  s  E  are  the  chief  legal  effects  of  marriage  during  the  co- 
verture ;  upon  which  we  may  obferve,  that  even  the  disabilities, 
which  the  wife  lies  under,  are  for  the  moft  part  intended  for  her 
protection  and  benefit.  So  great  a  favourite  is  the  female  fex  o£ 
the  laws  of  England.. 

*  Nov.   117.  r.  14.  &f  Van  Leeuwen  in        '  2- Lev.  128; 
he.  i  Stra.  1207. 

•  i  Sid.  113.    3  Keb.433.  '  Stra,  478.  875. 


446  7$*    RIGHTS  BOOK!. 


CHAPTER     THE      SIXTEENTH. 
OF     PARENT     AND     CHILD, 


'  |  ^  H  E  next,  and  the  moft  univerfal  relation  in  nature,  is  im- 
JL      mediately  derived  from  the  preceding,  being  that  between 
parent  and  child. 

CHILDREN  are  of  two  forts;  legitimate,  and  fpurious,  or 
baflards  :  each  of  which  we  mall  confider  in  their  order  ;  and 
firft  of  legitimate  children. 

I.  A  LEGITIMATE  child  is  he  that  is  born  in  lawful  wed- 
lock, or  within  a  competent  time  afterwards.  "  Pater  ejl  quern 
«'  nuptiae  demonftrant,"  is  the  rule  of  the  civil  law  * ;  and  this 
holds  with  the  civilians,  whether  the  nuptials  happen  before,  or 
after,  the  birth  of  the  child.  With  us  in  England  the  rule  is 
narrowed,  for  the  nuptials  mufl  be  precedent  to  the  birth  ;  of 
which  more  will  be  faid  when  we  come  to  confider  the  cafe  of 
baftardy.  At  prefent  let  us  enquire  into,  i .  The  legal  duties  of 
parents  to  their  legitimate  children.  2.  Their  power  over  them. 
3.  The  duties  of  fuch  children  to  their  parents. 

i.  AND,  firft,  the  duties  of  parents  to  legitimate  children: 
which  principally  confift  in  three  particulars  j  their  maintenance, 
their  protection,  and  their  education. 

•#-.2.4.5. 

THE 


Ch.  16,  of    PERSONS.  44.7 

THE  duty  of  parents  to  provide  for  the  maintenance  of  their 
children  is  a  principle  of  natural  law  ;  an  obligation,  fays  Puf- 
fendorfb,  laid  on  them  not  only  by  nature  herfelf,  but  by  their 
own  proper  act,  in  bringing  them  into  the  world  :  for  they  would 
be  in  the  higheft  manner  injurious  to  their  iffue,  if  they  only 
gave  the  children  life,  that  they  might  afterwards  fee  them  perim. 
By  begetting  them  therefore,  they  have  entered  into  a  voluntary 
obligation,  to  endeavour,  as  far  as  in  them  lies,  that  the  life  which 
they  have  beflowed  mall  be  fupported  and  preferved.  And  thus 
the  children  will  have  a  perfect  right  of  receiving  maintenance 
from  their  parents.  And  the  prefident  Montefquieu0  has  a  very 
juft  obfervation  upon  this  head:  that  the  eftablimment  of  mar- 
riage in  all  civilized  ftates  is  built  on  this  natural  obligation  of  the 
father  to  provide  for  his  children  -,  for  that  afcertains  and  makes 
known  the  perfon  who  is  bound  to  fulfil  this  obligation  ;  whereas,, 
in  promifcuous  and  illicit  conjunctions,  the  father  is  unknown  ; 
and  the  mother  finds  a  thoufand  obftacles  in  her  way  ;  — fhame,.. 
remorfe,  the  constraint  of  her  fex,  and  the  rigor  of  laws  ;  — 
that  ftifle  her  inclinations  to  perform  this  duty  :  and  belides,  flic 
generally  wants  ability. 

TH  E  municipal  laws  of  all  well-regulated  ftates  have  taken 
care  to  enforce  this  duty  :  though  providence  has  done  it  more 
effectually  than  any  laws,  by  implanting  in  the  breaft  of  every 
parent  that  natural  ropyti,  or  infuperable  degree  of  affection, 
which  not  even  the  deformity  of  perfon  or  mind,  not  even  the 
wickednefs,  ingratitude,  and  rebellion  of  children,  can  totally 
fupprefs  or  extinguifh. 

THE  civil  lawd  obliges  the  parent  to  provide  maintenance  for 
his  child  ;  and,  if  he  refufes,  tljudex  de  ea  re  cognofcet"  Nay,  it 
carries  this  matter  fo  far,  that  it  will  not  fuffer  a  parent  at  his 
death  totally  to  difmherit  his  child,  without  exprefily  giving  his 

"  L.  of  N.  1.4.  c  ii.  d  77.25.3.5. 

c  Sp.  L.  b.  23.  c.2. 

reafon 


448  The    RIGHTS  BOOK  I. 

reafon  for  fo  doing  ;  and  there  are  fourteen  fuch  reafons  reckoned 
up%  which  may  juftify  fuch  difmherifon.  If  the  parent  alleged 
no  reafon,  or  a  bad,  or  falfe  one,  the  child  might  fet  the  will  afide, 
tanquam  tejlamentum  inofficiofum,  a  teftament  contrary  to  the  natu- 
ral duty  of  the  parent.  And  it  is  remarkable  under  what  colour 
the  children  were  to  move  for  relief  in  fuch  a  cafe  :  by  fuggeft- 
ing  that  the  parent  had  loft  the  ufe  of  his  reafon,  when  he  made 
the  inofficious  teftament.  And  this,  as  Puffendorf  obfervesf,  was 
not  to  bring  into  difpute  the  teftator's  power  of  difmheriting  his 
own  offspring;  but  to  examine  the  motives  upon  which  he  did 
it  :  and,  if  they  were  found  defective  in  reafon,  then  to  fet  them 
afide.  But  perhaps  this  is  going  rather  too  far  :  every  man  has, 
or  ought  to  have,  by  the  laws  of  fociety,  a  power  over  his  own 
property  :  and,  as  Grotius  very  well  diftinguimesg,  natural  right 
obliges  to  give  a  necejjary  maintenance  to  children ;  but  what  is 
more  than  that  they  have  no  other  right  to,  than  as  it  is  given 
them  by  the  favour  of  their  parents,  or  the  pofitive  conflitutions 
of  the  municipal  law. 

LET  us  next  fee  what  provifion  our  own  laws  have  made  for 
this  natural  duty.  It  is  a  principle  of  law  h,  that  there  is  an  ob- 
ligation on  every  man  to  provide  for  thofe  defcended  from  his 
loins :  and  the  manner  in  which  this  obligation  mall  be  perform- 
ed, is  thus  pointed  out1.  The  father,  and  mother,  grandfather, 
and  grandmother  of  poor  impotent  perfons  mall  maintain  them 
at  their  own  charges,  if  of  fufficient  ability,  according  as  the 
quarter  feffions  mall  direct :  and  k  if  a  parent  runs  away,  and 
leaves  his  children,  the  churchwardens  and  overfeers  of  the  parifh 
{hall  feife  his  rents,  goods,  and  chattels,  and  difpofe  of  them  to- 
wards their  relief.  By  the  interpretations  which  the  courts  of 
law  have  made  upon  thefe  ftatutes,  if  a  mother  or  grandmother 
marries  again,  and  was  before  fuch  fecond  marriage  of  fufficient 
ability  to  keep  the  child,  the  hufband  mall  be  charged  to  main- 


e  Nov.  115. 

1  I.  4.  e.  11.  §.7. 

«  dtj.  b.  y  p.  1.  2.  c.j.  n.  3. 


h  Raym.  500. 

1  Stat.  43Eliz.  c.  2. 

k  Stat.  5  Geo.  I.  c.  8. 


tain 


Ch.  1 6.  of    PERSONS.  449 

tain  it1 :  for  this  being  a  debt  of  hers,  when  fingle,  mall  like 
others  extend  to  charge,  the  huiband.  But  at  her  death,  the  re- 
lation being  dhTolved,  the  hufband  is  under  no  farther  obligation. 

No  perfon  is  bound  to  provide  a  maintenance  for  his  ifTue, 
unlefs  where  the  children  are  impotent  and  unable  to  work,  either 
through  infancy,  difeafe,  or  accident ;  and  then  is  only  obliged 
to  find  them  with  necefTaries,  the  penalty  on  refufal  being  no 
more  than  2o.r.  a  month.  For  the  policy  of  our  laws,  which 
arc  ever  watchful  to  promote  induftry,  did  not  mean  to  compel 
a  father  to  maintain  his  idle  and  lazy  children  in  eafe  and  indo- 
lence :  but  thought  it  unjuft  to  oblige  the  parent,  againft  his  will, 
to  provide  them  with  fuperfluities,  and  other  indulgences  of  for- 
tune ;  imagining  they  might  truil  to  the  impulfe  of  nature,  if 
the  children  were  deferving  of  fuch  favours.  Yet,  as  nothing  is 
fo  apt  to  ftifle  the  calls  of  nature  as  religious  bigotry,  it  is  enact- 
ed m,  that  if  any  popifh  parent  mail  refufe  to  allow  his  proteftant 
child  a  fitting  maintenance,  with  a  view  to  compel  him  to  change 
his  religion,  the  lord  chancellor  mail  by  order  of  court  conftrain 
him  to  do  what  is  jufl  and  reafonable.  But  this  did  not  extend 
to  perfons  of  another  religion,  of  no  lefs  bitternefs  and  bigotry 
than  the  popifh  :  and  therefore  in  the  very  next  year  we  find  an 
inftance  of  a  jew  of  immenfe  riches,  whofe  only  daughter  having 
embraced  chriftianity,  he  turned  her  out  of  doors  -,  and  on  her 
application  for  relief,  it  was  held  (he  was  intitled  to  none  n.  But 
this  gave  occafion  °  to  another  flatute p,  which  ordains,  that  if 
jewifh  parents  refufe  to  allow  their  proteftant  children  a  fitting 
maintenance,  fuitable  to  the  fortune  of  the  parent,  the  lord  chan- 
cellor on  complaint  may  make  fuch  order  therein  as  he  mail  fee 
proper. 

OUR   law  has  made  no  provifion  to  prevent  the  difinheriting 
of  children  by  will :   leaving  every  man's  property  in  his  own 

1  Styles.  783.    2  Bulftr.  346.  °  Com.  Journ.   i8Feb.   laMar.  1701. 

m  Stat.  II  &  1 2  W.  III.  c.  4.  PI  Ann.  ft.  i .  0.30. 

*  Lord  Raym.  699. 

1  i   i  difpofal, 


450  The    RIGHTS  BOOK!. 

difpofal,  upon  a.  principle  of  liberty  in  this,  as  well  as  every  other, 
action  :  though  perhaps  it  had  not  been  amifs,  if  the  parent  had 
been  bound  to  leave  them  at  the  leaft  a  neceffary  fubfiftence.  By 
the  cuilom  of  London  indeed,  (which  was  formerly  univerfal 
throughout  the  kingdom)  the  children  of  freemen  are  entitled  to 
one  third  of  their  father's  effects,  to  be  equally  divided  among 
them  ;  of  which  he  cannot  deprive  them.  And,  among  perfons 
of  any  rank  or  fortune,  a  competence  is  generally  provided  for 
younger  children,  and  the  bulk  of  the  eftate  fettled  upon  the 
eldeft,  by  the  marriage-articles.  Heirs  alfo,  and  children,  are 
favourites  of  our  courts  of  juftice,  and  cannot  be  difinherited  by 
any  dubious  or  ambiguous  words  ;  there  being  required  the  ut- 
moft  certainty  of  the  teftator's  intentions  to  take  away  the  right 
of  an  heirq. 

FROM  the  duty  of  maintenance  we  may  eafily  pafs  to  that  of 
protection  ;  which  is  alfo  a  natural  duty,  but  rather  permitted  than 
enjoined  by  any  municipal  laws  :  nature,  in  this  refpect,  work- 
ing fo  ftrongly  as  to  need  rather  a  check  than  a  fpur.  A  parent 
may,  by  our  laws,  maintain  and  uphold  his  children  in  their  law- 
fuits,  without  being  guilty  of  the  legal  crime  of  maintaining 
quarrels  r.  A  parent  may  alfo  juftify  an  aflault  and  battery  in  de- 
fence of  the  perfons  of  his  children  s :  nay,  where  a  man's  fon 
was  beaten  by  another  boy,  and  the  father  went  near  a  mile  to 
find  him,  and  there  revenged  his  fon's  quarrel  by  beating  the 
other  boy,  of  which  beating  he  afterwards  unfortunately  died ;  it 
was  not  held  to  be  murder,  but  manslaughter  merely '.  Such  in- 
dulgence does  the  law  (hew  to  the  frailty  of  human  nature,  and 
the  workings  of  parental  affection. 

TH  E  laft  duty  of  parents  to  their  children  is  that  of  giving 
them  an  education  fuitable  to  their  itation  in  life  :  a  duty  pointed 
out  by  reafon,  and  of  far  the  greateft  importance  of  any.  For, 
as  Puffendorf  very  well  obferves  u,  it  is  not  eafy  to  imagine  or 

ii  Lev.  130.  '  Cro.  Jac.  296.    I  Hawk.  P.  C.  83. 

'  zlnft.  564.  »  L.  ofN.  b.6.  c.  2.  $.  12. 

'  i  Hawk.  P.  C.  131.  allow, 


Ch.  1 6.  of  PERSONS.  451 

allow,  that  a  parent  has  conferred  any  conliderable  benefit  upon. 
his  child,  by  bringing  him  into  the  world ;  if  he  afterwards  en- 
tirely negledts  his  culture  and  education,  and  fuffers  him  to  grow 
up  like  a  mere  beaft,  to  lead  a  life  ufelefs  to  others,  and  mame- 
ful  to  himfelf.  Yet  the  municipal  laws  of  moft  countries  feem  to 
be  defective  in  this  point,  by  not  conflraining  the  parent  to  be- 
ftow  a  proper  education  upon  his  children.  Perhaps  they  thought 
it  punimment  enough  to  leave  the  parent,  who  negledts  the  in- 
ftruclion  of  his  family,  to  labour  under  thofe  griefs  and  inconve- 
niences, which  his  family,  fo  uninftrucled,  will  be  fure  to  bring 
upon  him.  Our  laws,  though  their  defects  in  this  particular  can- 
not be  denied,  have  in  one  inftance  made  a  wife  provifion  for 
breeding  up  the  rifing  generation  :  fince  the  poor  and  laborious 
part  of  the  community,  when  paft  the  age  of  nurture,  are  taken 
out  of  the  hands  of  their  parents,  by  the  flatutes  for  apprenticing 
poor  children  w ;  and  are  placed  out  by  the  public  in  fuch  a  man- 
ner, as  may  render  their  abilities,  in  their  feveral  ftations,  of  the 
greateft  advantage  to  the  commonwealth.  The  rich  indeed  are 
left  at  their  own  option,  whether  they  will  breed  up  their  child- 
ren to  be  ornaments  or  difgraces  to  their  family.  Yet  in  one  cafe, 
that  of  religion,  they  are  under  peculiar  reflridtions  :  for  *  it  is 
provided,  that  if  any  .perfon  fends  any  child  under  his  govern- 
ment beyond  the  feas,  either  to  prevent  it's  good  education  in 
England,  or  in  order  to  enter  into  or  reiide  in  any  popifh  college, 
or  to  be  inftrudted,  perfuaded,  or  ftrengthened  in  the  popifh  re- 
ligion j  in  fuch  cafe,  befides  the  difabilities  incurred  by  the  child 
fo  fent,  the  parent  or  perfon  fending  mall  forfeit  ioo/.  which  y 
fhall  go  to  the  fole  ufe  and  benefit  of  him  that  fhall  difcover  the 
offence.  And  z  if  any  parent,  or  other,  fhall  fend  or  convey  any 
perfon  beyond  fea,  to  enter  into,  or  be  refident  in,  or  trained  up 
in,  any  priory,  abbey,  nunnery,  popifh  univerfity,  college,  or  fchool, 
or  houfe  of  jefuits,  or  priefls,  or  in  any  private  popifh  family,  in 
order  to  be  instructed,  perfuaded,  or  confirmed  in  the  popifh  re- 
ligion j  or  fhall  contribute  any  thing  towards  their  maintenance 

w  See  pag.  426.  y  Stat.  1 1  &  12  W.  III.  c.  4. 

1  Stat.  i  Jac.I.  c.  4.  &  3  Jac.  I.  c.  5.  z  Stat.  3  Car.  I.  c,  2. 

I  i  i  2  when 


452  1/je    RIGHTS  BOOK!. 

when  abroad  by  any  pretext  whatever,  the  perfon  both  fending 
and  lent  Shall  be  difabled  to  fue  in  law  or  equity,  or  to  be  execu- 
tor or  administrator  to  any  perfon,  or  to  enjoy  any  legacy  or  deed 
of  gift,  or  to  bear  any  office  in  the  realm,  and  Shall  forfeit  all  his 
goods  and  chattels,  and  likewife  all  his  real  eftate  for  life. 

2.  THE  power  of  parents  over  their  children  is  derived  from 
the  former  consideration,  their  duty ;  this  authority  being  given 
them,  partly  to  enable  the  parent  more  effectually  to  perform  his 
duty,  and  partly  as  a  recompenSe  for  his  care  and  trouble  in  the 
faithful  difcharge  of  it.  And  upon  this  fcore  the  municipal  laws 
of  fome  nations  have  given  a  much  larger  authority  to  the  parents,, 
than  others.  The  antient  Roman  laws  gave  the  father  a  power 
of  life  and  death  over  his  children  ;  upon  this  principle,  that  he 
who  gave  had  alfo  the  power  of  taking  away  a.  But  the  rigor  of 
thefe  laws  was  Softened  by  fubfequent  constitutions;  fo  thatb  we 
find  a  father  baniShed  by  the  emperor  Hadrian  for  killing  his  fon, 
though  he  had  committed  a  very  heinous  crime,  upon  this  maxim, 
that  "  patria  potejlas  in  pietate  debet,  non  in  atrocitate,  conjiftere" 
But  Still  they  maintained  to  the  laSt  a  very  large  and  abfolute  au- 
thority :  for  a  fon  could  not  acquire  any  property  of  his  own  du- 
ring the  life  of  his  father ;  but  all  his  acquisitions  belonged  to, 
the  father,  or  at  leaSt  the  profits  of  them  for  his  life c. 

THE  power  of  a  parent  by  our  EngliSh  laws  is  much  more- 
moderate  ;  but  ftill  Sufficient  to  keep  the  child  in  order  and  obe- 
dience. He  may  lawfully  correct  his  child,  being  under  age,  in 
a  reafonable  manner d ;  for  this  is  for  the  benefit  of  his  education. 
The  conSent  or  concurrence  of  the  parent  Jo  the  marriage  of 
his  child  under  age,  was  alfo  directed  by  our  antient  law  to  be  ob- 
tained :  but  now  it  is  abfolutely  necejjary  ;  for  without  it  the  con- 
tract is  void  e.  And  this  alfo  is  another  means,  which  the  law 
has  put  into  the  parent's  hands,  in  order  the  better  to  difcharge 

3  Ff.  28.  2.  ii.    Cud.  8.47.  10.  *  i  Hawk.  P.  C.  130. 

»  Ff.  48.  9.5.  «  Stat.  26  Geo.  II.  c.  33. 

«  loft.  2.  9.  i. 

his 


Ch.  i6.  </    PERSONS.  455 

his  duty  ;  firft,  of  protecting  his  children  from  the  fnares  of  art- 
ful and  defigning  perfons  ;  and,  next,  of  fettling  them  properly 
in  life,  by  preventing  the  ill  confequences  of  too  early  and  preci- 
pitate marriages.  A  father  has  no  other  power  over  his  ions  ef- 
tate,  than  as  his  truftee  or  guardian  ;  for,  though  he  may  receive 
the  profits  during  the  child's  minority,  yet  he  muft  account  for 
them  when  he  comes  of  age.  He  may  indeed  have  the  benefit  of 
his  children's  labour  while  they  live  with  him,  and  are  maintained 
by  him  :  but  this  is  no  more  than  he  is  entitled  to  from  his  ap- 
prentices or  fervants.  The  legal  power  of  a  father  (for  a  mother, 
as  fuch,  is  entitled  to  no  power,  but  only  to  reverence  and  re- 
fpeet)  the  power  of  a  father,  I  fay,  over  the  perfons  of  his  child- 
ren ceafes  at  the  age  of  twenty  one :  for  they  are  then  enfran- 
chifed  by  arriving  at  years  of  difcretion,  or  that  point  which  the 
law  has  eftablifhed  (as  fome  muft  neceflarily  be  eftabliflied)  when 
the  empire  of  the  father,  or  other  guardian,  gives  place  to  the 
empire  of  reafon.  Yet,  till  that  age  arrives,  this  empire  of  the 
father  continues  even  after  his  death  ;  for  he  may  by  his  will  ap- 
point a  guardian  to  his  children.  He  may  alfo  delegate  part  of 
his  parental  authority,  during  his  life,  to  the  tutor  or  fchoolmaf- 
ter  of  his  child  ;  who  is  then  in  loco  parent  is,  and  has  fuch  a  por- 
tion of  the  power  of  the  parent  committed  to  his  charge,  viz. 
that  of  reftraint  and  correction,  as  may  be  necetfary  to  anfwer 
the  purpofes  for  which  he  is  employed. 

3.  THE  duties  of  children  to  their  parents  arifes  from  a  prin- 
ciple of  natural  juftice  and  retribution.  For  to  thofe,  who  gave 
us  exiftence,  we  naturally  owe  fubjedtion  and  obedience  during 
our  minority,  and  honour  and  reverence  ever  after ;  they,  who 
protected  the  weaknefs  of  our  infancy,  are  entitled  to  our  protec- 
tion in  the  infirmity  of  their  age ;  they,  who  by  fuftenance  and 
education  have  enabled  their  offspring  to  profper,  ought  in  return 
to  be  fupported  by  that  offspring,  in  cafe  they  ftand  in  need  of 
affiftance.  Upon  this  principle  proceed  all  the  duties  of  children 
to  their  parents,,  which  are  enjoined  by  pofitive  laws.  And  the 

Athenian 


454  ^e    RIGHTS  BOOK  I. 

Athenian  laws f  carried  this  principle  into  practice  with  a  fcru- 
pulous  kind  of  nicety  :  obliging  all  children  to  provide  for  their 
father,  when  fallen  into  poverty ;  with  an  exception  to  fpurious 
children,  to  thofe  whofe  chaftity  had  been  proftituted  by  con- 
fent  of  the  father,  and  to  thofe  whom  he  had  not  put  in  any  way 
of  gaining  a  livelihood.  The  legiflature,  fays. baron  Montefquieu B, 
conlidered,  that  in  the  firft  cafe  the  father,  being  uncertain,  had 
rendered  the  natural  obligation  precarious ;  that,  in  the  fecond 
cafe,  he  had  fullied  the  life  he  had  given,  and  done  his  children 
the  greateft  of  injuries,  in  depriving  them  of  their  reputation; 
and  that,  in  the  third  cafe,  he  had  rendered  their  life  (fo  far  as 
in  him  lay)  an  infupportable  burthen,  by  furniming  them  with  no 
means  of  fubiiftence. 

OUR  laws  agree  with  thofe  of  Athens  with  regard  to  the  firft 
only  of  thefe  particulars,  the  cafe  of  fpurious  iffue.  In  the  other 
cafes  the  law  does  not  hold  the  tie  of  nature  to  be  diflblved  by 
any  misbehaviour  of  the  parent ;  and  therefore  a  child  is  equally 
juftifiable  in  defending  the  perfon,  or  maintaining  the  caufe  or 
fuit,  of  a  bad  parent,  as  a  good  one;  and  is  equally  compellable  h, 
if  of  fufficient  ability,  to  maintain  and  provide  for  a  wicked  and 
unnatural  progenitor,  as  for  one  who  has  {hewn  the  greateft  ten- 
dernefs  and  parental  piety. 

II.  WE  are  next  to  confider  the  cafe  of  illegitimate  children,  or 
baftards  ;  with  regard  to  whom  let  us  inquire,  i  .Who  are  baftards. 
2.  The  legal  duties  of  the  parents  towards  a  baftard  child.  3.  The 
rights  and' incapacities  attending  fuch  baftard  children. 

i.  WHO  are  baftards.  A  baftard,  by  our  Englifh  laws,  is  one 
that  is  not  only  begotten,  but  born,  out  of  lawful  matrrmony.  The 
civil  and  canon  laws  do  not  allow  a  child  to  remain  a  baftard,  if 
the  parents  afterwards  intermarry ' :  and  herein  they  differ  moft 
materially  from  our  law ;  which,  though  not  fo  ftricl  as  to  re- 

f  Potter's  Antiqu.  b.  4.  c.  15.  h  Stat.  43  Eliz.  c.  2. 

6  Sp.  L.  b.  26.  c.  5.  '  Injl.  i.  10.  13.   Decretal.  1.  4.  /.  17.  c.  i. 

quire 


Ch.  i6.  of    PERSONS.  455 

quire  that  the  child  mall  be  begotten,  yet  makes  it  an  indifpen fable 
condition  that  it  mall  be  born,  after  lawful  wedlock.  And  the 
reafon  of  our  Englifh  law  is  furely  much  fuperior  to  that  of  the 
Roman,  if  we  confider  the  principal  end  and  defign  of  eftablim- 
ing  the  contract  of  marriage,  taken  in  a  civil  light;  abstractedly 
from  any  religious  view,  which  has  nothing  to  do  with  the  legi- 
timacy or  illegitimacy  of  the  children.  The  main  end  and  defign 
of  marriage  therefore  being  to  afcertain  and  fix  upon  fome  certain 
perfon,  to  whom  the  care,  the  protection,  the  maintenance,  and 
the  education  of  the  children  mould  belong;  this  end  is  undoubt- 
edly better  anfwered  by  legitimating  all  iffue  born  after  wedlock,. 
than  by  legitimating  all  iffue  of  the  fame  parties,  even  born  be- 
fore wedlock,  fo  as  wedlock  afterwards  enfues  :  i.  Becaufe  of 
the  very  great  uncertainty  there  will  generally  be,  in  the  proof 
that  the  ifTue  was  really  begotten  by  the  fame  man  ;  whereas,  by 
confining  the  proof  to  the  birth,  and  not  to  the  begetting,  our 
law  has  rendered  it  perfectly  certain,  what  child  is  legitimate,, 
and  who  is  to  take  care  of  the  child.  2.  Becaufe  by  the  Roman 
law  a  child  may  be  continued  a  baftard,  or  made  legitimate,  at 
the  option  of  the  father  and  mother,  by  a  marriage  ex  poft  faffo  $. 
thereby  opening  a  door  to  many  frauds  and  partialities,  which  by 
our  law  are  prevented.  3.  Becaufe  by  thofe  laws  a  man  may  re- 
main a  baftard  till  forty  years  of  age,  and  then  become  legitimate, 
by  the  fubfequent  marriage  of  his  parents ;  whereby  the  main 
end  of  marriage,  the  protection  of  infants,  is  totally  fruflrated.. 
4.  Becaufe  this  rule  of  the  Roman  law  admits  of  no  limitations 
as  to  the  time,  or  number,  of  baftards  fo  to  be  legitimated  ;  but 
a  dozen  of  them  may,  twenty  years  after  their  birth,  by  the  fub- 
fequent marriage  of  their  parents,  be  admitted  to  all  the  privile- 
ges of  legitimate  children.  This  is  plainly  a  great  difcouragement. 
to  the  matrimonial  ftate ;  to  which  one  main  inducement  is  ufually 
not  only  the  defire  of  having  children,  but  alfo  the  defire  of  pro- 
creating lawful  heirs.  Whereas  our  constitutions  guard  againft  this 
indecency,  and  at  the  fame  time  give  fufficient  allowance  to  the 
frailties  of  human  nature.  For,  if  a  child  be  begotten  while  the 
parents  are  fingle,  and  they  will  endeavour  to  make  an  early  re- 
paration. 


456  Tbe    RIGHTS  BOOK!. 

paration  for  the  offence,  by  marrying  within  a  few  months  after, 
our  law  is  fo  indulgent  as  not  to  baftardize  the  child,  if  it  be 
born,  though  not  begotten,  in  lawful  wedlock :  for  this  is  an  in- 
cident that  can  happen  but  once;  fince  all  future  children  will  be 
begotten,  as  well  as  born,  within  the  rules  of  honour  and  civil 
fociety.  Upon  reafons  like  thefe  we  may  fuppoie  the  peers  to  have 
acted  at  the  parliament  of  Merton,  when  they  refufed  to  enact 
that  children  born  before  marriage  mould  be  efteemed  legitimate  k. 

FROM  what  has  been  faid  it  appears,  that  all  children  born 
before  matrimony  are  baflards  by  our  law  :  and  fo  it  is  of  all 
children  born  fo  long  after  the  death  of  the  hu(band,  that,  by  the 
ufual  courfe  of  geftation,  they  could  not  be  begotten  by  him. 
But,  this  being  a  matter  of  fome  uncertainty,  the  law  is  not  ex- 
act as  to  a  few  days '.  And  this  gives  occafion  to  a  proceeding  at 
common  law,  where  a  widow  is  fufpected  to  feign  herfelf  with 
child,  in  order  to  produce  a  fuppofititious  heir  to  the  eftate  :  an 
attempt  which  the  rigor  of  the  Gothic  conftitutions  efteemed 
equivalent  to  the  molt  atrocious  theft,  and  therefore  punimed 
with  death™.  In  this  cafe  with  us  the  heir  prefumptive  may  have 
a  writ  de  venire  infpiciendo,  to  examine  whether  me  be  with  child, 
or  not n ;  and,  if  me  be,  to  keep  her  under  proper  reflraint,  till 
delivered ;  which  is  entirely  conformable  to  the  practice  of  the 
civil  law0:  but,  if  the  widow  be  upon  due  examination  found  not 
pregnant,  the  prefumptive  heir  mall  be  admitted  to  the  inherit- 
ance, though  liable  to  lofe  it  again,  on  the  birth  of  a  child  within 
forty  weeks  from  the  death  of  the  hufbandr.  But  if  a  man  dies, 
and  his  widow  foon  after  marries  again,  and  a  child  is  born  within 
fuch  a  time,  as  that  by  the  courfe  of  nature  it  might  have  been 
the  child  of  either  hufband ;  in  this  cafe  he  is  faid  to  be  more 

k    Roga-verunt  omnes  epifcopi  magnates,    ut  c.  9.     See    the   introduction    to    the  great 

confentirent  quod  nati  ante  otatrimtnium  effcnt  charter,  edit.  Oxon.  1759-  fub  anno  \  253. 
legitimi,  f.cut  illi   qui  nati  funt  poft  matrimc-          '  Cro.  Jac.  541. 

tsiam,  qitia  ecclejia  tales  balet  pro  legitimis.  Et          m  Stiernhook  de  jure  Gotbar.  I.  3.  c.  5. 
omnes  (omites  et  barones  una  -voce  refponderunt,          "   Co.  Litt.  8.     Braft.  /.  2.  c.  32. 
quod  nolnnt  leges  Angliae  mat  are,  quae  hucufque         °  Ff.  25.  tit.  4.  per  tot. 
ufaatae Junt et  afprobatae.  Stat.  20 Hen.  III.          P  Britton.  c.  66.  pag.\66. 

than 


Ch.  16.  of    PERSONS. 

than  ordinarily  legitimate ;  for  he  may,  when  he  arrives  to  years 
of  difcretion,  choofe  which  of  the  fathers  he  pleafes <t.  To  pre- 
vent this,  among  other  inconveniences,  the  civil  law  ordained  that 
no  widow  mould  marry  infra  annum  luttus  * ;  a  rule  which  obtained 
fo  early  as  the  reign  of  Auguftus  s,  if  not  of  Romulus  :  and  the 
fame  constitution  was  probably  handed  down  to  our  early  ancef- 
tors  from  the  Romans,  during  their  flay  in  this  illand  ;  for  we 
find  it  eftablifhed  under  the  Saxon  and  Danilh  governments c. 

A  s  baftards  may  be  born  before  the  coverture  or  marriage 
ftate  is  begun,  or  after  it  is  determined,  fo  alib  children  born 
during  wedlock  may  in  fome  circumftances  be  baftards.  As  if  the 
hufoand  be  out  of  the  kingdom  of  England  (or,  as  the  law 
fomewhat  loofely  phrafes  it,  extra  quatuor  tnaria]  for  above  nine 
months,  fo  that  no  accefs  to  his  wife  can  be  prefumed,  her  iffue 
during  that  period  (hall  be  baftard v.  But,  generally,  during  the 
coverture  accefs  of  the  huiband  mail  be  prefumed,  unlefs  the 
contrary  can  be  fhewn  u ;  which  is  fuch  a  negative  as  can  only  be 
proved  by  fhewing  him  to  be  elfewhere  :  for  the  general  rule  is, 
praefumitur  pro  legitimatione  w.  In  a  divorce  a  menfa  et  tboro,  if 
the  wife  breeds  children  they  are  baftards  ;  for  the  law  will  pre- 
fume  the  huiband  and  wife  conformable  to  the  fentence  of  fepa- 
ration,  unlefs  accefs  be  proved  :  but,  in  a  voluntary  feparation  by 
agreement,  the  law  will  fuppofe  accefs,  unlefs  the  negative  be 
mewn  *.  So  alfo  if  there  is  an  apparent  impoffibility  of  procrea- 
tion on  the  part  of  the  huiband,  as  if  he  be  only  eight  years  old, 
or  the  like,  there  the  iffue  of  the  wife  mall  be  baftard y.  Like- 
wife,  in  cafe  of  divorce  in  the  fpiritual  court  a  vinculo  matrimonii, 
all  the  iffue  born  during  the  coverture  are  baftards z ;  becaufe  fuch 
divorce  is  always  upon  fome  caufe,  that  rendered  the  marriage 
unlawful  and  null  from  the  beginning. 

*  Co.  Litt.  S.  v  Co.  Litt.  244.. 

r  Cod.  5.  9.  2.  "  Salk.  123.  3  P.  W.  276.  Stra.  925. 

1  But  the  year  was  then  only  ten  months.  w  5  Rep.  98. 

Ovid.  Fajt.  I.  27.  :i  Salk.   123. 

1   Sit  om/iis  •-uiduajinemarito  dttodecimtnenfes.  y  Co.  Litt.  2^._|. 

LI.  Etbelr.  A.D.  1 008.  LL.  Catiut.  :.-\.  *  Ibid.  2  ;  5. 

K  k  k  2.  LET 


458  'The    RIGHTS  BOOK  I. 

2.  LET  us  next  fee  the  duty  of  parents  to  their  baftard  child- 
ren, by  our  law  ;  which  is  principally  that  of  maintenance.  For, 
though  baftard s  are  not  looked  upon  as  children  to  any  civil  pur- 
pofes,  yet  the  ties  of  nature,  of  which  maintenance  is  one,  are 
not  fo  ealily  diffolved  :  and  they  hold  indeed  as  to  many  other 
intentions  ;  as,  particularly,  that  a  man  {hall  not  marry  his  baf- 
tard lifter  or  daughter  a.  The  civil  law  therefore,  when  it  denied 
maintenance  to  baftards  begotten  under  certain  atrocious  circum- 
ftances  b,  was  neither  confonant  to  nature,  nor  reafon  ;  however 
profligate  and  wicked  the  parents  might  juftly  be  efteemed. 

TH  E  method  in  which  the  Englifh  law  provides  maintenance 
for  them  is  as  follows  c.  When  a  woman  is  delivered,  or  declares 
herfelf  with  child,  of  a  baftard,  and  will  by  oath  before  a  juftice 
of  peace  charge  any  perfon  having  got  her  with  child,  the  juftice 
mall  caufe  fuch  perfon  to  be  apprehended,  and  commit  him  till 
he  gives  fecurity,  either  to  maintain  the  child,  or  appear  at  the 
next  quarter  feffions  to  difpute  and  try  the  fact.  But  if  the  wo- 
man dies,  or  is  married  before  delivery,  or  mifcarries,  or  proves 
not  to  have  been  with  child,  the  perfon  {hall  be  difcharged  : 
otherwife  the  feffions,  or  two  juftices  out  of  feflions,  upon  ori- 
ginal application  to  them,  may  take  order  for  the  keeping  of  the 
baftard,  by  charging  the  mother  or  the  reputed  father  with  the 
payment  of  money  or  other  fuftentation  for  that  purpofe.  And 
if  fuch  putative  father,  or  lewd  mother,  run  away  from  the  pa- 
rim,  the  overfeers  by  direction  of  two  juftices  may  feize  their 
rents,  goods,  and  chattels,  in  order  to  bring  up  the  faid  baftard 
cKld.  Yet  fuch  is  the  humanity  of  our  laws,  that  no  woman  can 
be  compulftvely  queftioned  concerning  the  father  of  her  child,  till 
one  month  after  her  delivery  :  which  indulgence  is  however 
very  frequently  a  hardfliip  upon  pariihes,  by  fufFering  the  parents 
to  efcape. 

a  Lord  Raym.68.    Ccmb,  356.  c  Stat.iS  Eliz.  0.3.  7  Jac.  I.  0.4.  3  Car.I. 

b  AV-j.  89.  c.  15.  c.  4.  13&  14 Car.  II.  c.  12.  6Geo.II.  0.31. 

7,    I    PROCEED 


Ch.  16.  of   PERSONS.  459 

3.    I    PROCEED  next  to  the  rights  and  incapacities  which 
appertain  to  a  baftard.   The  rights  are  very  few,  being  only  fuch 
as  he  can  acquire  ;  for  he  can  inherit  nothing,  being  looked  upon  as 
the  fon  of  nobody,  and  fometimes  called  Jilius  nullius,  fometimes 
JiKus populi* .    Yet  he  may  gain  a  firname  by  reputation  e,   though 
he  has  none  by  inheritance.      All  other  children  have  their  pri- 
mary fettlement  in  their  father's  parilh  ;  but  a  baftard  in  the  parilh 
where  born,  for  he  hath  no  father f.     However,  in  cafe  of  fraud, 
as  if  a  woman  be  fent  either  by  order  of  juftices,   or  comes  to  beg 
as  a  vagrant,  to  a  parilh  which  (he  does  not  belong  to,  and  drops 
her  baftard  there  ;  the  baftard  mall,  in  the  firft  cafe,  be  fettled  in 
the  parifh  from  whence  Ihe  was  illegally  removed  * ;  or,  in  the 
latter  cafe,  in  the  mother's  own  parifh,  if  the  mother  be  appre- 
hended for  her  vagrancy11.    The  incapacity  of  a  baftard  conlifts 
principally  in  this,  that  he  cannot  be  heir  to  any  one,  neither  can 
he  have  heirs,  but  of  his  own  body ;  for,  being  nullius  Jilius,  he 
is  therefore  of  kin  to  nobody,  and  has  no  anceftor  from  whom 
any  inheritable  blood  can  be  derived.    A  baftard  was  alfo,  in  ftricT:- 
nefs,  incapable  of  holy  orders ;  and,  though  that  were  difpenfed 
with,  yet  he  was  utterly  difqualified  from  holding  any  dignity  in 
the  church '  :   but  this  doctrine  feems  now  obfolete ;   and  in  all 
other  refpecls,  there  is  no  diftindlion  between  a  baftard  and  an- 
other man.  And  really  any  other  diftinction,  but  that  of  not  in- 
heriting, which  civil  policy  renders  neceflary,   would,   with  re- 
gard to  the  innocent  offspring  of  his  parents'  crimes,   be  odious, 
unjuft,  and  cruel  to  the  laft  degree  :   and  yet  the  civil  law,  fo 
boafted  of  for  it's  equitable  decifions,  made  baftards  in  fome  cafes 
incapable  even  of  a  gift  from  their  parents  k.      A  baftard  may, 
laftly,   be  made  legitimate,    and  capable  of  inheriting,   by  the 
tranfcendent  power  of  an  adl  of  parliament,  and  not  ptherwife ! : 
as  was  done  in  the  cafe  of  John  of  Gant's  baftard  children,  by  a 
flatute  of  Richard  the  fecond. 

d  Fort,  tie LL.  c.  40,  h  Stat.  ijGco.  II.  c.  5. 

e  Co.  Litt.  3.  '  Fortefc.  c.  40.     5  Rep.  58. 

f  Salk.  427.  k  CoJ_  6  s_    s- 

i  Ibid.  121.  '4  Inft.  36. 

Kkk  2 


460  7%e    RIGHTS  BOOK!. 


CHAPTER     THE      SEVENTEENTH. 

• 

OF     GUARDIAN     AND     WARD. 


TH  E  only  general  private  relation,  now  remaining  to  be  dif- 
cuffed,  is  that  of  guardian  and  ward  j  which  bears  a  very 
near  refemblance  to  the  laft,  and  is  plainly  derived  out  of  it  :  the 
guardian  being  only  a  temporary  parent;  that  is,  for  fo  long 
time  as  the  ward  is  an  infant,  or  under  age.  In  examining  this 
fpecies  of  relationship,  I  mall  firft  confider  the  different  kinds  of 
guardians,  how  they  are  appointed,  and  their  power  and  duty  : 
next,  the  different  ages  of  perfons,  as  defined  by  the  law  :  and, 
laftly,  the  privileges  and  difabilities  of  an  infant,  or  one  under 
age  and  fubject  to  guardianfhip. 

i.  TH  E  guardian  with  us  performs  the  office  both  of  the  tu- 
tor and  curator  of  the  Roman  laws  -,  the  former  of  which  had 
the  charge  of  the  maintenance  and  education  of  the  minor,  the 
latter  the  care  of  his  fortune  ;  or,  according  to  the  language  of 
the  court  of  chancery,  the  tutor  was  the  committee  of  the  perfon, 
the  curator  the  committee  of  the  eftate.  But  this  office  was  fre- 
quently united  in  the  civil  law  a;  as  it  is  always  in  our  law  with 
regard  to  minors,  though  as  to  lunatics  and  idiots  it  is  commonly 
kept  diftincl:. 

*  Ff.  26.  4.  i. 

OF 


Ch.  17.  of    PERSONS.  461 

O  F  the  feveral  fpecies  of  guardians,  the  firft  are  guardians  by 
nature:  viz.  the  father  and  (in  fome  cafes)  the  mother  of  the 
child.  For,  if  an  eftate  be  left  to  an  infant,  the  father  is  by  com- 
mon law  the  guardian,  and  muft  account  to  his  child  for  the  pro- 
fits b.  And,  with  regard  to  daughters,  it  feems  by  conftrudtion  of 
the  ftatute  4&  5  Ph.  &  Mar.  c.  8.  that  the  father  might  by  deed 
or  will  affign  a  guardian  to  any  woman-child  under  the  age  of 
fixteen  ;  and,  if  none  be  fo  affigned,  the  mother  mall  in  this  cafe 
be  guardian0.  There  are  alfo  guardians^or  nurture^  ;  which  are, 
of  courfe,  the  father  or  mother,  till  the  infant  attains  the  age  of 
fourteen  years e :  and,  in  default  of  father  or  mother,  the  ordi- 
nary ufually  affigns  fome  difcreet  perfon  to  take  care  of  the  in- 
fant's perfonal  eftate,  and  to  provide  for  his  maintenance  and  edu- 
cation f.  Next  are  guardians  infocage,  (an  appellation  which  will 
be  fully  explained  in  the  fecond  book  of  thefe  commentaries)  who 
are  alfo  called  guardians  by  the  common  law.  Thefe  take  place  only 
when  the  minor  is  entitled  to  fome  eftate  in  lands,  and  then  by. 
the  common  law  the  guardianmip  devolves  upon  his  next  of  kin, 
to  whom  the  inheritance  caiinot  poffibly  defcend  ;  as,  where  the 
eftate  defcended  from  his  father,  in  this  cafe  his  uncle  by  the 
mother's  fide  cannot  poffibly  inherit  this  eftate,  and  therefore 
mall  be  the  guardian g.  For  the  law  judges  it  improper  to  truft 
the  perfon  of  an  infant  in  his  hands,  who  may  by  poffibility  be- 
come heir  to  him  ;  that  there  may  be  no  temptation,  nor  even 
fufpicion  of  temptation,  for  him  to  abufe  his  truft  h.  The  Ro- 
man laws  proceed  on  a  quite  contrary  principle,  committing  the 
care  of  the  minor  to  him  who  is  the  next  to  fucceed  to  the  inhe- 
ritance, prefuming  that  the  next  heir  would  take  the  beft  care  of 
an  eftate,  to  which  he  has  a  profpecl:  of  fucceeding  :  and  this 
they  boaft  to  be  "  fumnia  promdentia '."  But  in  the  mean  time 

b   Co.  Litt.  88.  k   Nunquam  cuftod-a   alicujus  dc  jure  alicui 

c    3  Rep.  39.  reiKanet,   de  quo  haueatur  fufpicio,   quod  fcffit 

d  Co.  Litt.  83.  mel  t'c.it  aliquodjits  in  ij>ja.}jaer. dilate  clamare. 

c  Moor.  738.  3  Rep.  38.  Glanv./.  7.  c.  n. 
f  2  Jones  90.    2  Lev.  163.  J  Ff.  26.  4.  i. 

s  Litt.  §.  123. 

they 


462  The    Ps.  i  G  K  T  s  BOOK.  I. 

they  fcem  to  have  forgotten,  how  mitch  it  is  the  guardian's  inte- 
reft  to  remove  the  incumbrance  of  his  pupil's  life  from  that  eilate, 
for  which  he  is  fuppofed  to  have  fo  great  a  regard1'.  And  this 
affords  Fortefcue  ',  and  fir  Edward  Coke  m,  an  ample  opportunity 
for  triumph ;  they  affirming,  that  to  commit  the  cuftody  of  an 
infant  to  him  that  is  next  in  fuccemon,  is  "  qitaji agnum  commit- 
"  fere  hipo,  ad  devprandum"."  Thefe  guardians  in  focage,  like 
thofe  for  nurture,  continue  only  till  the  minor  is  fourteen  years 
of  age ;  for  then,  in  both  cafes,  he  is  prefumed  to  have  difcre- 
tion,  fo  far  as  tochoofe  his  own  guardian.  This  he  may  do,  un- 
lefs  one  be  appointed  by  the  father,  by  virtue  of  the  ftatute 
12  Car.  II.  c.  24.  which,'  confidering  the  imbecillity  of  judg- 
ment in  children  of  the  age  of  fourteen,  and  the  abolition  of 
guardianfhip  in  chivalry  (which  lafted  till  the  age  of  twenty  one, 
and  of  which  we  mall  fpeak  hereafter)  enadts,  that  any  father, 
under  age  or  of  full  age,  may  by  deed  or  will  difpofe  of  the  cuf- 
tody  of  his  child,  either  born  or  unborn,  to  any  perfon,  except  a 
popifh  recufant,  either  in  pofTefTion  or  reverfion,  till  fuch  child 
attains  the  age  of  one  and  twenty  years.  Thefe  are  called  guar- 
dians byjlatute,  or  teftamentary  guardians.  There  are  alfo  fpecial 
guardians  by  cujlom  of  London,  and  other  places  ° ;  but  they  are 
particular  exceptions,  and  do  not  fall  under  the  general  law. 

THE  power  and  reciprocal  duty  of  a  guardian  and  ward  are 
the  fame,  pro  tempore,  as  that  of  a  father  and  child  ;  and  there- 
fore I  {hall  not  repeat  them  :  but  mall  only  add,  that  the  guardian, 
when  the  ward  comes  of  age,  is  bound  to  give  him  an  account 

k  The  Roman  fatyrifi  was  fully  aware  of  guardian,  who  was  to  enjoy  the  eftate  after 

this  danger,  when  he  put  this  private  prayer  his  death.     (Potter's  Antiqu.   b.  I.   0.26.) 

into  the  mouth  of  a  felfiih  guardian;  And    Charondas,    another  of  the  Grecian 

——pupillumout'inam,qitem}roximusbaeres  legiflators,    directed    that   the    inheritance 

Imfello,  expungam.    Perf.  l.  12.  Ihould  go  to  the  father's  relations,  but  the 

1  c.  44.  education  of  the  child  to  the  mother's;  that 

m  i  Ir.ft.  88.  the   guardianship    and    right   of  fucceffion 

"  This  policy  of  our  Englifh  law  is  war-  might  always  be  kept  diftinft.    (Petit.  Leg. 

ranted  by  the  wife  inftitutions  of  Scion,  who  dtt.  1.6.  t.  7.) 

provided  that  no  one  fliould  be  another's         •  Co.  Litt.  88. 

of 


Ch.  17.  of   PERSONS.  463 

of  all  that  he  has  tranfafted  on  his  behalf,  and  mult  anfwer  for 
all  loffes  by  his  wilful  default  or  negligence.  In  order  therefore 
to  prevent  difagreeable  contefts  with  young  gentlemen,  it  has  be- 
come a  practice  for  many  guardians,  of  large  eftates  efpecially,  to 
indemnify  themfelves  by  applying  to  the  court  of  chancery,  act- 
ing  under  it's  direction,  and  accounting  annually  before  the  offi- 
cers of  that  court.  For  the  lord  chancellor  is,  by  right  derived 
from  the  crown,  the  general  and  fupreme  guardian  of  all  infants, 
as  well  as  idiots  and  lunatics  ;  that  is,  of  all  fuch  perfons  as  have 
not  difcretion  enough  to  manage  their  own  concerns.  In  cafe 
therefore  any  guardian  abufes  his  truft,  the  court  will  check  and 
punilh  him  ;  nay  fometimes  proceed  to  the  removal  of  him,  and 
appoint  another  in  his  fteadp. 

2.  LET  us  next  confider  the  ward,  or  perfon  within  age,  for 
whofe  affiltance  and  fupport  thefe  guardians  are  conflituted  by 
law  ;  or  who  it  is,  that  is  laid  to  be  within  age.  The  ages  of 
male  and  female  are  different  for  different  purpofes.  A  male  at 
twelve  years  old  may  take  the  oath  of  allegiance  ;  at  fourteen  is 
at  years  of  difcretion,  and  therefore  may  con  fen  t  or  difagree  to 
marriage,  may  choofe  his  guardian,  and,  if  his  difcretion  be  ac- 
tually proved,  may  make  his  teftament  of  his  perfonal  eftate  ;  at 
J'eventeen  may  be  an  executor  j  and  at  twenty  one  is  at  his  own 
difpofal,  and  may  aliene  his  lands,  goods,  and  chattels.  A  female 
alfo  atfeven  years  of  age  may  be  betrothed  or  given  in  marriage  ; 
at  nine  is  entitled  to  dower  ;  at  twelve  is  at  years  of  maturity,  and 
therefore  may  confent  or  difagree  to  marriage,  and,  if  proved  to 
have  fufficient  difcretion,  may  bequeath-  her  perfonal  eftate ;  at 
fourteen  is  at  years  of  legal  difcretion,  and  may  choofe  a  guardian  ; 
at  feventeen  may  be  executrix  ;  and  at  twenty  one  may  difpofe  of 
herfelf  and  her  lands.  So  that  full  age  in  male  or  female  is  twenty 
one  years,  which  age  is  completed  on  the  day  preceding  the  anni- 
verfary  of  a  perfon's  birth  q  j  who  till  that  time  is  an  infant,  and 
fo  ftiled  in  law.  Among  the  antient  Greeks  and  Romans  women 

P   i  Sid.  424.     i  P.  Will.  703.  i  Salk.  44  625, 

were 


464  Tlie    RIGHTS  BOOK!, 

were  never  of  age,  but  fubjcdt  to  perpetual  guardianmip  r,  unlefs 
when  married,  "  nlfi  convenient  in  manum  iiiri :"  and,  when  that 
perpetual  tutelage  wore  away  in  procefs  of  time,  we  find  that,  in 
females  as  well  as  males,  full  age  was  not  till  twenty  five  years5. 
Thus,  by  the  conilitutions  of  different  kingdoms,  this  period, 
which  is  merely  arbitrary,  and  juris  pofitivi,  is  fixed  at  different 
times.  Scotland  agrees  with  England  in  this  point ;  (both  pro- 
bably copying  from  the  old  Saxon  conftitutions  on  the  continent, 
which  extended  the  age  of  minority  "  ad  annum  vigefimum  primum, 
"  ct  eo  ufque  juvenes  fub  tutelam  rcponu?it*"}  but  in  Naples  they 
are  of  full  age  at  eighteen ;  in  France,  with  regard  to  marriage, 
not  till  thirty ;  and  in  Holland  at  twenty  five-. 

3.  INFANTS  have  various  privileges,  and  various  difabilities : 
but  their  very  difabilities  are  privileges  ;  in  order  to  fecure  them 
from  hurting  themfelves  by  their  own  improvident  adls.  An  in- 
fant cannot  be  fued  but  under  the  protection,  and  joining  the 
name,  of  his  guardian  ;  for  he  is  to  defend  him  againft  all  attacks 
as  well  by  law  as  otherwife  u :  but  he  may  fue  either  by  his 
guardian,  or  prochcin  amy,  his  next  friend  who  is  not  his  guardian. 
This  prochein  amy  may  be  any  perfon  who  will  undertake  the  in- 
fant's caufe  •,  and  it  frequently  happens,  that  an  infant,  by  his 
prochein  amy,  inftitutesa  fuitin  equity  againft  a  fraudulentguardian. 
In  criminal  cafes,  an  infant  of  the  age  of  fourteen  years  may  be 
capitally  punifhed  for  any  capital  offence  w  :  but  under  the  age  of 
Jeven  he  cannot.  The  period  between  feven  and  fourteen  is  fub- 
je<£l  to  much  uncertainty  :  for  the  infant  mall,  generally  fpeaking, 
be  judged  prima  facie  innocent ;  yet  if  he  was  doli  capax,  and 
could  difcern  between  good  and  evil  at  the  time  of  the  offence 
committed,  he  may  be  convicted  and  undergo  judgment  and  exe- 
cution of  death,  though  he  hath  not  attained  to  years  of  puberty 

r  Pott.  AntKju.  b-4-  c.  II.  Cic.froMu-  well  as  the  fubjetfl,  arrives  at  full  age  in 

rtn.  12.  modem   Sweden.     Mod.  Un.  Hift.  yxxiii. 

s  Inft.  i.  23.  i.  220. 

1   Stiernhook  de  jure  Sueonum.  1.  z.  c.  z.  °  Co.  Litt.  135. 

This  is  alfo  the  period  when,  the  king,  as  w   i  Hal.  P.  C.  25. 

or 


Ch.  17.  of    PERSONS.  465 

or  discretion  *.  And  fir  Matthew  Hale  gives  us  two  inflances, 
one  of  a  girl  of  thirteen,  who  was  burned  for  killing  her  mif- 
trefs  j  another  of  a  boy  flill  younger,  that  had  killed  his  compa- 
nion, and  hid  himfelf,  who  was  hanged ;  for  it  appeared  by  his 
hiding  that  he  knew  he  had  done  wrong,  and  could  difcern  be- 
tween good  and  evil :  and  in  fuch  cafes  the  maxim  of  law  is,  that 
malitia  fupplet  aetatem.  So  alfo,  in  much  more  modern  times,  a 
boy  of  ten  years  old,  who  was  guilty  of  a  heinous  murder,  was 
held  a  proper  fubjecT:  for  capital  punifhment,  by  the  opinion  of 
all  the  judges  y. 

WITH  regard  to  eflates  and  civil  property,  an  infant  hath 
many  privileges,  which  will  be  better  underftood  when  we  come 
to  treat  more  particularly  of  thofe  matters :  but  this  may  be  faid 
in  general,  that  an  infant  mall  lofe  nothing  by  non-claim,  or  ne- 
glecl  of  demanding  his  right ;  nor  mail  any  other  laches  or  neg- 
ligence be  imputed  to  an  infant,  except  in  fome  very  particular 
cafes. 

IT  is  generally  true,  that  an  infant  can  neither  alienc  his 
lands,  nor  do  any  legal  a<5t,  nor  make  a  deed,  nor  indeed  any 
manner  of  contra<ft,  that  will  bind  him.  But  (till  to  all  thefe  rules 
there  are  fome  exceptions  j  part  of  which  were  juft  now  men- 
tioned in  reckoning  up  the  different  capacities  which  they  aflume 
at  different  ages :  and  there  are  others,  a  few  of  which  it  may 
not  be  improper  to  recite,  as  a  general  fpecimen  of  the  whole. 
And,  firft,  it  is  true,  that  infants  cannot  aliene  their  eftates  : 
but  infant  truftees,  or  mortgagees,  are  enabled  to  convey,  under 
the  direction  of  the  court  of  chancery  or  exchequer,  the  eftates 
they  hold  in  truft  or  mortgage,  to  fuch  perfon  as  the  court  mall 
appoint z.  Alfo  it  is  generally  true,  that  an  infant  can  do  no  legal 
adl :  yet  an  infant,  who  has  an  advowfon,  may  prefent  to  the 
benefice  when  it  becomes  void  a.  For  the  law  in  this  cafe  dif- 
penfes  with  one  rule,  in  order  to  maintain  others  of  far  greater 

*  i  Hal.  P.  C.  26.  *  Stat.  7  Ann.  c.  19. 

r  Fofler.  72.  a  Co.  Litt.  171. 

L  1  1  confe* 


466  The    RIGHTS  BOOK!. 

confequence  :  it  permits  an  infant  to  prefent  a  clerk  (who,  if 
unfit,  may  be  rejected  by  the  bifliop)  rather  than  either  fuffer 
the  church  to  be  unferved  till  he  comes  of  age,  or  permit  the  in- 
fant to  be  debarred  of  his  right  by  lapfe  to  the  biihop.  An  infant 
may  alfo  purchafe  lands,  but  his  purchafe  is  incomplete  :  for, 
when  he  conies  to  age,  he  may  either  agree  or  difagree  to  it,  as 
he  thinks  prudent  or  proper,  without  alleging  any  reafon  ;  and 
fo  may  his  heirs  after  him,  if  he  dies  without  having  completed 
his  agreement b.  It  is,  farther,  generally  true,  that  an  infant, 
under  twenty  one,  can  make  no  deed  but  what  is  afterwards 
voidable  :  yet  in  fome  cafes c  he  may  bind  himfelf  apprentice  by 
deed  indented,  or  indentures,  for  feven  years  ;  andd  he  may  by 
deed  or  will  appoint  a  guardian  to  his  children,  if  he  has  any. 
Laflly,  it  is  generally  true,  that  an  infant  can  make  no  other  con- 
tract that  will  bind  him :  yet  he  may  bind  himfelf  to  pay  for 
his  neceflary  meat,  drink,  apparel,  phylic,  and  fuch  other  necef- 
faries  j  and  likewife  for  his  good  teaching  and  infhruclion,  where- 
by he  may  profit  himfelf  afterwards  e.  And  thus  much,  at  pre-» 
fent,  for  the  privileges  and  difabilities  of  infants. 

b  Co.  Litt.  2.  •'  Stat.  12  Car.  II.  024. 

c  Stat.  5  Eliz.  c-4-    43Eliz,  c.  2.  Cro.     .    c  Co.  Litt.  173. 
Car.  179. 


Ch,  1 8.  of    PERSONS.  467 


CHAPTER     THE     EIGHTEENTH. 
OF     CORPORATIONS. 


WE  have  hitherto  confidered  perfons  in  their  natural  capa- 
cities, and  have  treated  of  their  rights  and  duties.  But, 
as  all  perfonal  rights  die  with  the  perfon  ;  and,  as  the  neceffary 
forms  of  inverting  a  feries  of  individuals,  one  after  another,  with 
the  fame  identical  rights,  would  be  very  inconvenient,  if  not  im- 
practicable ;  it  has  been  found  neceflary,  when  it  is  for  the  ad- 
vantage of  the  public  to  have  any  particular  rights  kept  on  foot 
and  continued,  to  constitute  artificial  perfons,  who  may  maintain 
a  perpetual  fucceffion,  and  enjoy  a  kind  of  legal  immortality. 

THESE  artificial  perfons  are  called  bodies  politic,  bodies  cor- 
porate, ("corpora  corporata)  or  corporations  :  of  which  there  is  a 
great  variety  fubfifting,  for  the  advancement  of  religion,  of  learn- 
ing, and  of  commerce  j  in  order  to  preferve  entire  and  for  ever 
thofe  rights  and  immunities,  which,  if  they  were  granted  only 
to  thofe  individuals  of  which  the  body  corporate  is  compofed, 
would  upon  their  death  be  utterly  loft  and  extincl.  To  fLew  the 
advantages  of  thefe  incorporations,  let  us  confider  the  cafe  of  a 
college  in  either  of  our  universities,  founded  ad Jludendum  et  oran- 
dum,  for  the  encouragement  and  fupport  of  religion  and  learning. 
If  this  was  a  mere  voluntary  afTembly,  the  individuals  which  com- 
pofe  it  might  indeed  read,  pray,  ftudy,  and  perform  fcholaftic 
exercifes  together,  fo  long  as  they  could  agree  to  do  fo  :  but  they 

L  1  1   2  could 


468  TJje    RIGHTS  BOOK!. 

could  neither  frame,  nor  receive,  any  laws  or  rules  of  their  con- 
duel  ;  none  at  leaft,  which  would  have  any  binding  force,  for 
want  of  a  coercive  power  to  create  a  fufficient  obligation.  Nei- 
ther could  they  be  capable  of  retaining  any  privileges  or  immu- 
nities :  for,  if  fuch  privileges  be  attacked,  which  of  all  this  un- 
connected aflembly  has  the  right,  or  ability,  to  defend  them  ? 
And,  when  they  are  difperfed  by  death  or  otherwife,  how  (hall 
they  transfer  thefe  advantages  to  another  fet  of  fludents,  equally 
unconnected  as  themfelves  ?  So  alfo,  with  regard  to  holding  eftates 
or  other  property,  if  land  be  granted  for  the  purpofes  of  religion 
or  learning  to  twenty  individuals  not  incorporated,  there  is  no 
legal  way  of  continuing  the  property  to  any  other  perfons  for  the 
fame  purpofes,  but  by  endlefs  conveyances  from  one  to  the  other, 
as  often  as  the  hands  are  changed.  But,  when  they  are  confolida- 
ted  and  united  into  a  corporation,  they  and  their  fuccellbrs  are 
then  confidered  as  one  perfon  in  law  :  as  one  perfon,  they  have 
one  will,  which  is  collected  from  the  lenfe  of  the  majority  of  the 
individuals :  this  one  will  may  eftabliih  rules  and  orders  for  the 
regulation  of  the  whole,  which  are  a  fort  of  municipal  laws  of 
this  little  republic ;  or  rules  and  ftatutes  may  be  prefcribed  to  it 
at  it's  creation,  which  are  then  in  the  place  of  natural  laws  :  the 
privileges  and  immunities,  the  eftates  and  poffeiTions,  of  the  cor- 
poration, when  once  veiled  in  them,  will  be  for  ever  vefted, 
without  any  new  conveyance  to  new  fucceflions;  for  all  the  indi- 
vidual members  that  have  exifted  from  the  foundation  to  the  pre- 
fent  time,  or  that  mail  ever  hereafter  exift,  are  but  one  perfon  in 
law,  a  perfon  that  never  dies :  in  like  manner  as  the  river  Thames 
is  flill  the  fame  river,  though  the  parts  which  compofe  it  are 
changing  every  inftant. 

TH  E  honour  of  originally  inventing  thefe  political  conftitu- 
tions  entirely  belongs  to  the  Romans.  They  were  introduced,  as 
Plutarch  fays,  by  Numa  ;  who  finding,  upon  his  acceffion,  the 
city  torn  to  pieces  by  the  two  rival  factions  of  Sabines  and  Ro- 
mans, thought  it  a  prudent  and  politic  meafure,  to  fubdivide  thefe 
two  into  many  frnaller  ones,  by  inflituting  feparate  focieties  o£ 

every 


Ch.  i8.  of    PERSONS.  469 

every  manual  trade  and  profelTion.  They  were  afterwards  much 
contidered  by  the  civil  law  a,  in  which  they  were  called  univerji- 
tates,  as  forming  one  whole  out  of  many  individuals  ;  or  collegia, 
from  being  gathered  together:  they  were  adopted  alfo  by  the 
canon  law,  for  the  maintenance  of  ecclefiaftical  difcipline  -,  and 
from  them  our  fpiritual  corporations  are  derived.  But  our  laws 
have  confiderably  refined  and  improved  upon  the  invention,  ac- 
cording to  the  ufual  genius  of  the  English  nation  :  particularly 
with  regard  to  fole  corporations,  confifting  of  one  perfon  only, 
of  which  the  Roman  lawyers  had  no  notion  ;  their  maxim  being 
that  "  tres  Jaciunt  collegium  b."  Though  they  held,  that  if  a  cor- 
poration, originally  confifting  of  three  perfons,  be  reduced  to  one, 
"Ji  univerjitas  ad  uniim  redit,"  it  may  ftill  fubftft  as  a  corporation, 
"  t'tjlct  nomen  univerjitatis c." 

BEFORE  we  proceed  to  treat  of  the  feveral  incidents  of  cor- 
porations, as  regarded  by  the  laws  of  England,  let  us  firft  take  a 
view  of  the  feveral  forts  of  them  ;  and  then  we  mall  be  better 
enabled  to  apprehend  their  refpedtive  qualities. 

TH  E  firft  divifion  of  corporations  is  into  aggregate  and  fde, 
Corporations  aggregate  confift  of  many  perfons  united  together 
into  one  fociety,  and  are  kept  up  by  a  perpetual  fuccemon  of 
members,  fo  as  to  continue  for  ever  :  of  which  kind  are  the 
mayor  and  commonalty  of  a  city,  the  head  and  fellows  of  a  col- 
lege, the  dean  and  chapter  of  a  cathedral  church..  Corporations 
fole  confift  of  one  perfon  only  and  his  fucceflbrs,  in  fome  parti- 
cular ftation,  who  are  incorporated  by  law,  in  order  to  give  them 
fome  legal  capacities  and  advantages,,  particularly  that  of  perpe- 
tuity, which  in  their  natural  perfons  they  could  not  have  had. 
In  this  fenfe  the  king  is  a  fole  corporation  d  :  fo  is  a  bifhop  :  fo 
are  fome  deans,  and  prebendaries,  diftindt  from  their  feveral 
chapters  :  and  fo  is  every  parfon  and  vicar.  And  the  neceffity, 
or  at  leaft  ufe,  of  this  inftitution  will  be  very  apparent,  if  we 

»  Ff.  /.3.   t.  4.  per  tot.  c  Ff.  3.4-7- 

b  Ff.  50.  16.  8.  J  Co.  Liu.  43. 

confidec 


47°  2^£    RIGHTS  BOOK!. 

confider  the  cafe  of  a  parfon  of  a  church.  At  the  original  endow- 
ment of  parilh  churches,  the  freehold  of  the  church,  the  church- 
yard, the  parfonage  houfe,  the  glebe,  and  the  tithes  of  the  pa- 
riih,  where  veiled  in  the  then  parfon  by  the  bounty  of  the  donor, 
as  a  temporal  recompenfe  to  him  for  his  fpiritual  care  of  the  in- 
habitants, and  with  intent  that  the  fame  emoluments  fhould  ever 
afterwards  continue  as  a  recompenfe  for  the  fame  care.  But  how 
was  this  to  be  effected  ?  The  freehold  was  verted  in  the  parfon  ; 
and,  if  we  fuppofe  it  veiled  in  his  natural  capacity,  on  his  death 
it  might  defcend  to  his  heir,  and  would  be  liable  to  his  debts  and 
.incumbrances  :  or,  at  bell,  the  heir  might  be  compelluble,  at 
fome  trouble  and  expenfe,  to  convey  thefe  rights  to  the  fucceed- 
ing  incumbent.  The  law  therefore  has  wifely  ordained,  that  the 
parfon,  quatenns  parfon,  mall  never  die,  any  more  than  the  king  ; 
by  making  him  and  his  fuccelYors  a  corporation.  By  which  means 
all  the  original  rights  of  the  parfonage  are  preferved  entire  to  the 
fucceflbr :  for  the  prefent  incumbent,  and  his  predeceffor  who 
lived  feven  centuries  ago,  are  in  law  one  and  the  fame  perfon ; 
and  what  was  given  to  the  one  was  given  to  the  other  alfo. 

ANOTHER  divifion  of  corporations,  either  fole  or  aggregate, 
is  into  ecclejiajlical  and  lay.  Eccleliaflical  corporations  are  where 
the  members  that  compofe  it  are  entirely  fpiritual  perfons ;  fuch 
as  bifhops ;  certain  deans,  and  prebendaries ;  all  archdeacons, 
parfons,  and  vicars  -,  which  are  fole  corporations  :  deans  and 
chapters  at  prefent,  and  formerly  prior  and  convent,  abbot  and 
monks,  and  the  like,  bodies  aggregate.  Thefe  are  creeled  for 
the  furtherance  of  religion,  and  perpetuating  the  rights  of  the 
church.  Lay  corporations  are  of  two  forts,  c/W/and  ckcmojynary, 
The  civil  are  fuch  as  are  erected  for  a  variety  of  temporal  purpo- 
fes.  The  king,  for  inilance,  is  made  a  corporation  to  prevent  in 
general  the  poffibility  of  an  interregnum  or  vacancy  of  the  throne, 
and  to  preferve  the  pofTefiions  of  the  crown  entire ;  for,  imme- 
diately upon  the  demife  of  one  king,  his  fucceffor  is,  as  we  have 
formerly  feen,  in  full  poffeflion  of  the  regal  rights  and  dignity. 
Other  lay  corporations  are  erected  for  the  good  government  of  a 

town 


Ch.  1 8.  of    PERSONS.  471 

town  or  particular  diitrict,  as  a  mayor  and  commonalty,  bailiff 
and  burgefles,  or  the  like  :  fome  for  the  advancement  and  regu- 
lation of  manufactures  and  commerce  ;  as  the  trading  companies 
of  London,  and  other  towns  :  and  fome  for  the  better  carrying 
on  of  divers  fpecial  purpofes  ;  as  churchwardens,  for  confervation 
of  the  goods  of  the  parilh  ;  the  college  of  phyficians  and  com- 
pany of  furgeons  in  London,  for  the  improvement  of  the  medi- 
cal fcience  ;  the  royal  fociety,  for  the  advancement  of  natural 
knowlege ;  and  the  fociety  of  antiquarians,  for  promoting  the 
ftudy  of  antiquities.  And  among  thefe  I  am  inclined  to  think  the 
general  corporate  bodies  of  the  univerfities  of  Oxford  and  Cam- 
bridge muft  be  ranked  :  for  it  is  clear  they  are  not  fpiritual  or 
eccleiiaftical  corporations,  being  compofed  of  more  laymen  than 
clergy  :  neither  are  they  eleemofynary  foundations,  though  fti- 
pends  are  annexed  to  particular  magiftrates  and  profeflbrs,  any 
more  than  other  corporations  where  the  acting  officers  have  ftand- 
ing  falaries  ;  for  thefe  are  rewards  pro  opera  et  labor?,  not  charit- 
able donations  only,  fince  every  ftipend  is  preceded  by  fervice  and 
duty  :  they  feem  therefore  to  be  merely  civil  corporations.  The 
eleemofynary  fort  are  fuch  as  are  conftituted  for  the  perpetual  dif- 
ftribution  of  the  free  alms,  or  bounty,  of  the  founder  of  them 
to  fuch  perfons  as  he  has  directed.  Of  this  kind  are  all  hofpitals 
for  the  maintenance  of  the  poor,  tick,  and  impotent  ;  and  all 
colleges,  both  in  our  univerfities  and  out*  of  them  :  which  colleges 
are  founded  for  two  purpofes  ;  i.  For  the  promotion  of  piety 
and  learning  by  proper  regulations  and  ordinances.  2.  For  im- 
parting amftance  to  the  members  of  thofe  bodies,  in  order  to 
enable  them  to  profecute  their  devotion  and  ftudies  with  greater 
eafe  and  afliduity.  And  all  thefe  eleemofynary  corporations  are, 
ftrictly  fpeaking,  lay  and  not  ecclefiailical,  even  though  com- 
pofed of  ecclefiaftical  perfons f,  and  although  they  in  fome  things 
partake  of  the  nature,  privileges,  and  redactions  of  ecclefiaftical 
bodies. 


e   Such  as  at  Manchester,  Eton,    Win-         f   i  Lord  Raym.  6. 
diefter,  fcff.. 


H  A  V  I  N  0 


472  Tls    RIGHTS  BOOK  I. 

HAVING  thus  marflialled  the  feveral  fpecies  of  corporations, 
let  us  next  proceed  to  confider,  i .  How  corporations,  in  general, 
may  be  created.  2.  What  are  their  powers,  capacities,  and  in- 
capacities. 3.  How  corporations  are  vifited.  And  4.  How  they 
may  be  diffolved. 

I.  CORPORATIONS,  by  the  civil  law,  feem  to  have  been 
created  by  the  mere  act,  and  voluntary  affociation  of  their  mem- 
bers ;  provided  fuch  convention  was  not  contrary  to  law,  for  then 
it  was  illicitum  collegium g.  It  does  not  appear  that  the  prince's 
confent  was  neceflary  to  be  actually  given  to  the  foundation  of 
them  ;  but  merely  that  the  original  founders  of  thefe  voluntary 
and  friendly  focieties  (for  they  were  little  more  than  fuch)  mould 
not  eftabliih  any  meetings  in  oppofition  to  the  laws  of  the  ftate. 

B  u  T,  with  us  in  England,  the  king's  confent  is  abfolutely  ne- 
ceffary  to  the  erection  of  any  corporation,  either  impliedly  or  ex- 
preflly  given.  The  king's  implied  confent  is  to  be  found  in  cor- 
porations which  exift  by  force  of  the  common  laio,  to  which  our 
former  kings  are  fuppofed  to  have  given  their  concurrence;  com- 
mon law  being  nothing  elfe  but  cuftom,  arifing  from  the  univer- 
fal  agreement  of  the  whole  community.  Of  this  fort  are  the 
king  himfelf,  all  bifhops,  parfons,  vicars,  churchwardens,  and 
fome  others  ;  who  by  common  law  have  ever  been  held  (as  far  as 
our  books  can  mew  us)  to  have  been  corporations,  virtute  qfficii  : 
and  this  incorporation  is  fo  infeparably  annexed  to  their  offices, 
that  we  cannot  frame  a  complete  legal  idea  of  any  of  thefe  per- 
fons,  but  we  muft  alfo  have  an  idea  of  a  corporation,  capable  to 
tranfmit  his  rights  to  his  fucceflbrs,  at  the  fame  time.  Another 
method  of  implication,  whereby  the  king's  confent  is  prefumed, 
is  as  to  all  corporations  by  prefcription,  fuch  as  the  city  of  Lon- 
don, and  many  others  h,  which  have  exifted  as  corporations,  time 

f  Ff.  47.  22.  I.    Jffjue  Jbcietatf  neque  col-     eonfultis,  ft  principalilm  ctnjlitut  icnibus  ea  res 
1-gium,  neque  hujufmodi  corpus pajjlti  omnibus     coercetur.  Ff,  3.  4.  1. 
habere  conceditur  ;   nam  et  kgilus,  et  fenatiu         h  2  Inft.  330. 

whereof 


Ch.  1 8.  of   PERSONS,  471; 

whereof  the  memory  of  man  runneth  not  to  the  contrary ;  and 
therefore  are  looked  upon  in  law  to  be  well  created.   For  though 
the  members  thereof  can  ftiew  no  legal  charter  of  incorporation, 
yet  in  cafes  of  fuch  high  antiquity  the  law  prefumes  there  once 
was  one ;  and  that  by  the  variety  of  accidents,  which  a  length  of 
time  may  produce,  the  charter  is  loft  or  dellroyed.  The  methods, 
by  which  the  king's  confent  is  expreflly  given,  are  either  by  act 
of  parliament  or  charter.     By  act  of  parliament,  of  which  the 
royal  aflent  is  a  neceffary  ingredient,  corporations  may  undoubt- 
edly be  created1 :   but  it  is  obfervable,  that  moft  of  thofe  ftatutes, 
which  are  ufually  cited  as  having  created  corporations,  do  either 
confirm  fuch  as  have  been  before  created  by  the  king ;   as  in  the 
cafe  of  the  college  of  phyficians,  creeled  by  charter  10  Hen.  VIII k, 
which  charter  was  afterwards  confirmed  in  parliament';  or,  they 
permit  the  king  to  erect  a  corporation  in  futuro  with  fuch  and 
fuch  powers  j  as  is  the  cafe  of  the  bank  of  England  m,  and  the 
fociety  of  the  Britifh  fifhery  n.  So  that  the  immediate  creative  act 
is  ufually  performed   by  the  king  alone,  in  virtue  of  his  royal 
prerogative  °. 

ALL  the  other  methods  therefore  whereby  corporations  exift, 
by  common  law,  by  prefcription,  and  by  act  of  parliament,  are 
for  the  moft  part  reducible  to  this  of  the  king's  letters  pa- 
tent, or  charter  of  incorporation.  The  king's  creation  may  be 
performed  by  the  words  "  creamus,  erigimus,  fundamus,  incorpo- 
"  ramus"  or  the  like.  Nay  it  is  held,  that  if  the  king  grants  to  a 
fet  of  men  to  have  gildam  mercatoriam,  a  mercantile  meeting  or 
afTembly  p,  this  is  alone  fufHcient  to  incorporate  and  eftablim  them 
for  ever  q. 

'   loRe.p.  29.     i  Roll.  Abr.  512.  «•  Gild  fignified  among  the  Saxons  a  fra- 

k  8  Rep.  114.  ternity,  derived  from  the  verb  Jllban  to 

1    14  &  15  Hen.  VIII.  c.  5.  pay,   becaufe  every  man  paid  his  mare  to-  " 

m  Stat.  5  &  6  W.  £  M.   c.  20.  wards  the  expenfes  of  the  community.  And 

n  Stat.  23  Geo.  II.  c.  4.  hence  their  place  of  meeting  is  frequently 

•  See  pag.  272.  called  the  Gild-hall, 

i   10  Rep.  30.    I  Roll.  Abr.  513. 

M  m  m  THE 


474  ^je    RIGHTS  BOOK!. 

TH  E  parliament,  we  obferved,  by  it's  abfolute  and  tranfcen- 
dent  authority,  may  perform  this,  or  any  other  act  whatfoever : 
and  actually  did  perform  it  to  a  great  extent,  by  ftatute  39  Eliz, 
c.  5.  which  incorporated  all  hofpitals  and  houfes  of  correction 
founded  by  charitable  perfons,  without  farther  trouble  :  and  the 
fame  has  been  done  in  other  cafes  of  charitable  foundations.  But 
otherwife  it  is  not  ufual  thus  to  intrench  upon  the  prerogative  ot 
the  crown,  and  the  king  may  prevent  it  when  he  pleafes.  And, 
in  the  particular  inflance  before-mentioned,  it  was  done,  as  fir 
Edward  Coke  obferves  r,  to  avoid  the  charges  of  incorporation 
and  licences  of  mortmain  in  fmall  benefactions  ;  which  in  his 
days  were  grown  fo  great,  that  they  difcouraged  many  men  from 
undertaking  thefe  pious  and  charitable  works. 

THE  king  (it  is  faid)  may  grant  to  a  fubjedt  the  power  of 
erecting  corporations s,  though  the  contrary  was  formerly  held  l : 
that  is,  he  may  permit  the  fubject  to  name  the  perfons  and  powers 
of  the  corporation  at  his  pleafure  ;  but  it  is  really  the  king  that 
creels,  and  the  fubject  is  but  the  inftrument :  for  though  none 
but  the  king  can  make  a  corporation,  yet  quifacit  per  ahum,facit 
per  fe  v.  In  this  manner  the  chancellor  of  the  univerfity  of  Ox- 
ford has  power  by  charter  to  erect  corporations ;  and  has  actually 
often  exerted  it,  in  the  erection  of  feveral  matriculated  compa- 
nies, now  fubfifting,  of  tradefmen  fubfervient  to  the  ftudents. 

WHEN  a  corporation  is  erected,  a  name  muft  be  given  it, 
and  by  that  name  alone  it  muft  fue,  and  be  fued,  and  do  all  legal 
acts;  though  a  very  minute  variation  therein  is  not  material". 
Such  name  is  the  very  being  of  it's  conftitution  ;  and,  though  it 
is  the  will  of  the  king  that  erects  the  corporation,  yet  the  name 
is  the  knot  of  it's  combination,  without  which  it  could  not  per- 
form it's  corporate  functions  w.  The  name  of  incorporation,  fays 

r  2lnft.  722.  v   ioRep.  33. 

*  Bro.   Atr.  tit.  Prercg.  53.     Viner.  Pie-  u  Ibid.  122. 

rog.  88.  pi.  16.  w  Gilb.  Hift.  C.  P.  182. 
1  Yearbook,  2 Hen.  VII.  13.  fir 


Ch.  1 8.  of    PERSONS.  475 

fir  Edward  Coke,  is  as  a  proper  name,  or  name  of  baptifm  -,  and 
therefore  when  a  private  founder  gives  his  college  or  hofpital  a 
name,  he  does  it  only  as  a  godfather  -,  and  by  that  fame  name  the 
king  baptizes  the  incorporation  *. 

II.  AFTER  a  corporation  is  fo  formed  and  named,  it  ac~ 
quires  many  powers,  rights,  capacities,  and  incapacities,  which 
we  are  next  to  confider.  Some  of  thefe  are  neceflarily  and  infe- 
parably  incident  to  every  corporation  ;  which  incidents,  as  loon 
as  a  corporation  is  duly  erected,  are  tacitly  annexed  of  courfe  y. 
As,  i.  To  have  perpetual  fucceflion.  This  is  the  very  end  of  it's 
incorporation  :  for  there  cannot  be  a  fucceflion  for  ever  without 
an  incorporation  z ;  and  therefore  all  aggregate  corporations  have 
a  power  neceflarily  implied  of  electing  members  in  the  room  of 
fuch  as  go  off1.  2.  To  fue  or  be  fued,  implead  or  be  impleaded, 
grant  or  receive,  by  it's  corporate  name,  and  do  all  other  acts  as 
natural  perfons  may.  3.  To  purchafe  lands,  and  hold  them,  for 
the  benefit  of  themfelves  and  their  fucceflbrs  :  which  two  are 
confequential  to  the  former.  4.  To  have  a  common  feal.  For  a 
corporation,  being  an  invifible  body,  cannot  manifell  it's  inten- 
tions by  any  perfonal  act  or  oral  difcourfe  :  it  therefore  acts  and 
fpeaks  only  by  it's  common  feal.  For,  though  the  particular 
members  may  exprefs  their  private  confents  to  any  act,  by  words, 
or  figning  their  names,  yet  this  does  not  bind  the  corporation  : 
it  is  the  fixing  of  the  feal,  and  that  only,  which  unites  the  feveral 
aflents  of  the  individuals,  who  compofe  the  community,  and 
make  one  joint  aflent  of  the  whole  b.  5.  To  make  by-laws  or 
private  ftatutes  for  the  better  government  of  the  corporation ; 
which  are  binding  upon  themfelves,  unlefs  contrary  to  the  laws 
of  the  land,  and  then  they  are  void.  This  is  alfo  included  by 
law  in  the  very  act  of  incorporation  c  :  for,  as  natural  reafon  is 
given  to  the  natural  body  for  the  governing  it,  fo  by-laws  or  fta- 
tutes are  a  fort  of  political  reafon  to  govern  the  body  politic. 

x  10  Rep.  28.  a   i  Roll.  Abr.  514. 

y  Hid.  30.    Hob.  211.  b  Dav.  44.  48. 

7  10  Rep.  26.  c  Hob.  211. 

M  m  m   2  And 


476  Tie    RIGHTS  BOOK!. 

And  this  right  of  making  by-laws  for  their  own  government,  not 
contrary  to  the  law  of  the  land,  was  allowed  by  the  law  of  the 
twelve  tables  at  Rome  d.  But  no  trading  company  is,  with  us, 
allowed  to  make  by-laws,  which  may  afFecT:  the  king's  preroga- 
tive, or  the  common  profit  of  the  people,  under  penalty  of  40 /. 
unlefs  they  be  approved  by  the  chancellor,  treafurer,  and  chief 
juftices,  or  the  judges  of  aflile  in  their  circuits  :  and,  even  though 
they  be  fo  approved,  {till  if  contrary  to  law  they  are  voide.  Thele 
five  powers  are  infeparably  incident  to  every  corporation,  at  leaft 
to  every  corporation  aggregate :  for  two  of  them,  though  they 
may  be  praclifed,  yet  are  very  unneceflary  to  a  corporation  fole ; 
viz.  to  have  a  corporate  feal  to  teftify  hi~s  fole  affent,  and  to  make 
ftatutes  for  the  regulation  of  his  own  conduct. 

TH  ERE   are  alfo  certain  privileges  and  difabilities  that  attend 
an  aggregate  corporation,  and  are  not  applicable  to  fuch  as  are 
fole  -,  the  reafon  of  them  ceafing,  and  of  courfe  the  law.    It  muft 
always  appear  by  attorney  ;  for  it  cannot  appear  in  perfon,  being, 
as  fir  Edward  Coke  fays  f,  invifible,  and  existing  only  in  intend- 
ment  and  conlideration  of  law.      It  can  neither  maintain,  or  be 
made  defendant  to,  an  action  of  battery  or  fuch  like  perfonal  in- 
juries ;  for  a  corporation  can  neither  beat,  nor  be  beaten,  in  it's 
body  politic  g.     A  corporation  cannot  commit  treafon,  or  felony, 
or  other  crime,  in  it's  corporate  capacity  h  :   though  it's  members 
may,  in  their  diitincl:  individual  capacities '.  Neither  is  it  capable 
of  fuffering  a  traitor's  or  felon's  puniihment,  for  it  is  not  liable 
to  corporal  penalties,  nor  to  attainder,  forfeiture,  or  corruption 
of  blood.      It  cannot  be  executor  or  administrator,  or  perform 
any  perfonal  duties ;  for  it  cannot  take  an  oath  for  the  due  exe- 
cution of  the  office.     It  cannot  be  feifed  of  lands  to  the  ufe  of 
another } ;  for  fuch  kind  of  confidence  is  foreign  to  the  end  of 

d  Sodales  legftn  quam  *volent,  dum  tie  quid  ex          '  The  civil  law  alfo  ordains  that,   for  the 

publica  legi  corrumpant^  fibi  ftrunto.  milbehaviour  of  a  body  corporate,  the  di- 

«  Stat.  ipHen.  VII.  c.  7.     iiRep.  54.  reftors  only •  fhall  be  anfwerable  in  their  per- 

f   loRep.  32.  fonal  capacities.     Ff.^,  3.  15. 
2  Bro.  Abr.  tit.  Corporation.  63.  ;  Bro.  Abr.  tit.  Fecjfm.  al  ii/es.  40.    Bacon 

h  ioRep.3».  of  ufes.  347. 

it's 


Ch.  i8.  of    PERSONS.  477 

it's  institution.  Neither  can  it  be  committed  to  prifon  k ;  for  it's 
exiftence  being  ideal,  no  man  can  apprehend  or  arreft  it.  And 
therefore  alfo  it  cannot  be  outlawed ;  for  outlawry  always  fup- 
pofes  a  precedent  right  of  arrefting,  which  has  been  defeated  by 
the  parties  abfconding,  and  that  alfo  a  corporation  cannot  do : 
for  which  reafpns  the  proceedings  to  compel  a  corporation  to  ap- 
pear to  any  fuit  by  attorney  are  always  by  diflrefs  on  their  lands 
and  goods  '.  Neither  can  a  corporation  be  excommunicated  ;  for 
it  has  no  foul,  as  is  gravely  obferved  by  fir  Edward  Cokem :  and 
therefore  alfo  it  is  not  liable  to  be  fummoned  into  the  ecclefiafti- 
cal  courts  upon  any  account ;  for  thofe  courts  adt  only  pro  falute 
animae,  and  their  fentences  can  only  be  enforced  by  fpiritual  cen- 
fures  :  a  consideration,  which,  carried  to  it's  full  extent,  would 
alone  demonftrate  the  impropriety  of  thefe  courts  interfering  in- 
any  temporal  rights  whatsoever. 

THERE  are  alfo  other  incidents  and  powers,  which  belong  to 
fome  fort  of  corporations,  and  not  to  others.  An  aggregate  corpo- 
ration may  take  goods  and  chattels  for  the  benefit  of  themfelves 
and  their  fucceifors,  but  a  fole  corporation  cannot n :  for  fuch 
moveable  property  is  liable  to  be  loft  or  imbezzled,  and  would 
raife  a  multitude  of  difputes  between  the  fucceffor  and  executor; 
which  the  law  is  careful  to  avoid.  In  eccleiiaftical  and  eleemofy- 
nary  foundations,  the  king  or  the  founder  may  give  them  rules, 
laws,  flatutes,  and  ordinances,  which  they  are  bound  to  obferve  r 
but  corporations  merely  lay,  constituted  for  civil  purpofes,  are- 
fubjeft  to  no  particular  Statutes  ;  but  to  the  common  law,  and  to 
their  own  by-laws,  not  contrary  to  the  laws  of  the  realm  °.  Ag- 
gregate corporations  alfo,  that  have  by  their  constitution  a  head,, 
as  a  dean,  warden,  mafler,  or  the  like,  cannot  do  any  a&s  during 
the  vacancy  of  the  headfhip,  except  only  appointing  another: 
neither  are  they  then  capable  of  receiving  a  grant ;  for  fuch  cor- 
poration is  incomplete  without  a  head p.  But  there  may  be  a  cor— 

"  Plowd.  538.  »  Co.  Utt.  46. 

1  Bro.  Abr.tit.  Corporation.  II.     Outlaid-          °  Lord  Raym.  8. 
iy.  72.  P  Co.  Litt.  263,  264. 

2-  poratioii: 


478  The    RIGHTS  BOOK.  I. 

poration  aggregate  conftituted  without  a  headq:  as  the  collegiate 
church  of  Southwell  in  Nottinghamshire,  which  confifts  only  of 
prebendaries;  and  the  governors  of  the  Charter-houfe,  London, 
who  have  no  prefident  or  fuperior,  but  are  all  of  equal  authority. 
In  aggregate  corporations  alfo,  the  act  of  the  major  part  is  efteem- 
ed  the  act  of  the  whole r.  By  the  civil  law  this  major  part  muft 
have  confifted  of  two  thirds  of  the  whole  ;  elfe  no  act  could  be 
performed  s :  which  perhaps  may  be  one  reafon  why  they  required 
three  at  leaft  to  make  a  corporation.  But,  with  us,  any  majority 
is  fufficient  to  determine  the  act  of  the  whole  body.  And  whereas, 
notwithftanding  the  law  flood  thus,  fome  founders  of  corpora- 
tions had  made  ftatutes  in  derogation  of  the  common  law,  making 
very  frequently  the  unanimous  aflent  of  the  fociety  to  be  necefTary 
to  any  corporate  aft ;  (which  king  Henry  VIII  found  to  be  a  great 
obftrudtion  to  his  projected  fcheme  of  obtaining  a  furrender  of 
the  lands  of  ecclefiaftical  corporations)  it  was  therefore  enacted 
by  flatute  33  Hen.  VIII.  c.  27.  that  all  private  ftatutes  (hall  be 
xitterly  void,  whereby  any  grant  or  election,  made  by  the  head, 
with  the  concurrence  of  the  major  part  of  the  body,  is  liable 
to  be  obftrudted  by  any  one  or  more,  being  the  minority:  but 
this  ftatute  extends  not  to  any  negative  or  neceffary  voice,  given 
by  the  founder  to  the  head  of  any  fuch  fociety. 

W  E  before  obferved  that  it  was  incident  to  every  corporation, 
to  have  a  capacity  to  purchafe  lands  for  themfelves  and  fucceflbrs  : 
and  this  is  regularly  true  at  the  common  law  l.  But  they  are  ex- 
cepted  out  of  the  flatute  of  wills u ;  fo  that  no  devife  of  lands  to  a 
corporation  by  will  is  good  :  except  for  charitable  ufes,  by  flatute 
43  Eliz.  c.  4W.  And  alfo,  by  a  great  variety  of  ftatutes*,  their 
privilege  even  of  purchafing  from  any  living  grantor  is  greatly 
abridged ;  fo  that  now  a  corporation,  either  ecclefiaftical  or  lay, 

i  ioRep-30.  "  34-Hen.VIII.  0.5. 

r  Bro.  Abr.  tit.  Corporation.^.  3|.  w  Hob.  136. 

'  Ff.  3.  4.  3.  *  From  magna  carta,  9  Hen.  III.    c.  36. 

1   10  Rep.  30.  togGeo.  II.  c.  36. 

muft 


Ch.  i8.  of    PERSONS.  479 

muft  have  a  licence  from  the  king  to  purchafe y,  before  they  can 
exert  that  capacity  which  is  vefted  in  them  by  the  common  law  : 
nor  is  even  this  in  all  cafes  fufficient.  Thefe  ftatutes  are  gene- 
rally called  the  ftatutes  of  mortmain ;  all  purchafes  made  by  cor- 
porate bodies  being  faid  to  be  purchafes  in  mortmain,  in  mortua 
manu:  for  the  reafon  of  which  appellation  lir  Edward  Cokez  of- 
fers many  conjectures  ;  but  there  is  one  which  feems  more  pro- 
bable than  any  that  he  has  given  us  :  viz.  that  thefe  purchafes 
being  ufually  made  by  ecclefiaftical  bodies,  the  members  of  which 
(being  proiefTed)  were  reckoned  dead  perfons  in  law,  land  there- 
fore, holden  by  them,  might  with  great  propriety  be  faid  to  be 
held  in  mortua  manu. 

I  SHALL  defer  the  more  particular  expolition  of  thefe  fta- 
tutes of  mortmain,  till  the  next  book  of  thefe  commentaries,, 
when  we  mall  confider  the  nature  and  tenures  of  eftates ;  and 
alfo  the  expofition  of  thofe  difabling  ftatutes  of  queen  Elizabeth, 
which  reftrain  fpiritual  and  eleemofynary  corporations  from  alien- 
ing fuch  lands  as  they  are  at  prefent  in  legal  poffeffion  of:  only 
mentioning  them  in  this  place,  for  the  fake  of  regularity,  as 
ftatutable  incapacities  incident  and  relative  to  corporations. 

TH  E  general  duties  of  all  bodies  politic,  confidered  in  their 
corporate  capacity,  may,  like  thofe  of  natural  perfons,  be  reduced 
to  this  fingle  one  ;  that  of  acting  up  to  the  end  or  defign,  what- 
ever it  be,  for  which  they  were  created  by  their  founder. 

III.  I  PROCEED  therefore  next  to  enquire,  how  thefe  cor- 
porations may  be  vijited.  For  corporations  being  compofed  of  in- 
dividuals, fubject  to  human  frailties,  are  liable,  as  well  as  private 
perfons,  to  deviate  from  the  end  of  their  inftitution.  And  for  that 
reafon  the  law  has  provided  proper  perfons  to  vifit,  enquire  into, 
and  correct  all  irregularities  that  arife  in  fuch  corporations,  either 

>'  By  the  civil  law  a  corporation  was  in-    fpeciali  privilegio  fubnixum  fit,  Ijaereditatem  ca- 
capable  of  taking  lands,  unlefs  by  fpecial     pure  nan  poffe,  dutium  none/I.    Cod.  6.  24..  8. 
privilege  from  the  emperor:  collegium,  finullo         *  I  Inft.  2. 

fole 


480  'The    RIGHTS  BOOK!. 

fole  or  aggregate,  and  whether  ecclefiaftical,  civil,  or  eleemofy- 
nary.  With  regard  to  all  ecclefiaftical  corporations,  the  ordinary  - 
is  their  vifitor,  fo  conciliated  by  ihe  canon  law,  and  from  thence 
derived  to  us.  The  pope  formerly,  and  now  the  king,  as  fupreme 
ordinary,  is  the  viiitor  of  the  arch-bifhop  or  metropolitan ;  the 
metropolitan  has  the  charge  and  coercion  of  all  his  fuffragan  bi- 
iliops ;  and  the  bifhops  in  their  feveral  diocefes  are  in  ecclefiafti- 
cal matters  the  viiltors  of  all  deans  and  chapters,  of  all  parfons 
and  vicars,  and  of  all  other  fpiritual  corporations.  With  refpedt 
to  all  lay-corporations,  the  founder,  his  heirs,  or  afiigns,  are  the  v 
vifitors,  whether  the  foundation  be  civil  or  eleemofynary  ;  for  in 
a  lay  incorporation  the  ordinary  neither  can  nor  ought  to  vifit a. 

I  K  N  o  w  it  is  generally  faid,  thai  civil  corporations  are  fubject 
to  no  vifitation,  but  merely  to  the  common  law  of  the  landj  and 
this  {hall  be  prefently  explained.  But  firft,  as  I  have  laid  it  down 
as  a  rule  that  the  founder,  his  heirs,  or  affigns,  are  the  vifitors 
of  all  lay-corporations,  let  us  enquire  what  is  meant  by  the  foun- 
der. The  founder  of  all  corporations  in  the  ftricteft  and  original 
fenfe  is  the  king  alone,  for  he  only  can  incorporate  a  fociety  : 
and  in  civil  incorporations,  fuch  as  mayor  and  commonalty,  &c, 
where  there  are  no  pofTeffions  or  endowments  given  to  the  body, 
there  is  no  other  founder  but  the  king  :  but  in  eleemofynary 
foundations,  fuch  as  colleges  and  hofpitals,  where  there  is  an  en- 
dowment of  lands,  the  law  distinguishes,  and  makes  two  fpecies 
of  foundation  ;  the  Q\\&  fundatio  incipient*  or  the  incorporation,  in 
which  fenfe  the  king  is  the  general  founder  of  all  colleges  and 
hofpitals  ;  the  other  fundatio  perficiens,  or  the  dotation  of  it,  in 
which  fenfe  the  firft  gift  of  the  revenues  is  the  foundation,  and 
he  who  gives  them  is  in  law  the  fonnder :  and  it  is  in  this  laft 
fenfe  that  we  generally  call  a  man  the  founder  of  a  college  or  hof- 
pital b.  But  here  the  king  has  his  prerogative  :  for,  if  the  king 
and  a  private  man  join  in  endowing  an  eleemofynary  foundation, 
the  king  alone  mall  be  the  founder  of  it.  And,  in  general,  the 
king  being  the  fole  founder  of  all  civil  corporations,  and  the  en- 

1   10  Rep.  31.  b  Ibid.  33. 

dower 


Ch.  1 8.  c/"    PERSONS.  481 

dower  the  perficient  founder  of  all  eleemofynary  ones,  the  right 
of  vifitation  of  the  former  refults,  according  to  the  rule  laid  down, 
to  the  king ;  and  of  the  latter,  to  the  patron  or  endower. 

TH  E  king  being  thus  constituted  by  law  the  viiitor  of  all  civil 
corporations,  the  law  has  alfo  appointed  the  place,  wherein  he 
(hall  exercife  this  jurildidtion:  which  is  the  court  of  king's  bench; 
where,  and  where  only,  all  mifbehaviours  of  this  kind  of  corpo- 
rations are  enquired  into  and  redreiled,  and  all  their  controveriies 
decided.  And  this  is  what  I  underftand  to  be  the  meaning  of  our 
lawyers,  when  they  fay  that  thefe  civil  corporations  are  liable  to 
no  vifitation ;  that  is,  that  the  law  having  by  immemorial  ufage 
appointed  them  to  be  vilited  and  infpecled  by  the  king  their 
founder,  in  his  majefty's  court  of  king's  bench,  according  to  the 
rules  of  the  common  law,  they  ought  not  to  be  vilited  elfewhere, 
or  by  any  other  authority0.  And  this  is  fo  ftrictly  true,  that  though 
the  king  by  his  letters  patent  had  fubjected  the  college  of  phyli- 
cians  to  the  vilitation  of  four  very  refpedlable  perfons,  the  lord 
chancellor,  the  two  chief  juftices,  and  the  chief  baron  ;  though 
the  college  had  accepted  this  charter  with  all  poffible  marks  of 
acquiefcence,  and  had  acled  under  it  for  near  a  century ;  yet,  in 
1753,  the  authority  of  this  provifion  coming  in  difpute,  on  an 
appeal  preferred  to  thefe  fuppofed  vifitors,  they  directed  the  le- 
gality of  their  own  appointment  to  be  argued  :    and,  as  this  col- 
lege was  merely  a  civil  and  not  an  eleemofynary  foundation,  they 
at  length  determined,  upon  feveral  days  folemn  debate,  that  they 
had  no  jurifdidlion  as  vifitors  j  and  remitted  the  appellant  (if  aggrie- 
ved) to  his  regular  remedy  in  his  majefty's  court  of  king's  bench. 

As  to  eleemofynary  corporations,  by  the  dotation  the  founder 
and  his  heirs  are  of  common  right  the  legal  vifitors,  to  fee  that 
that  property  is  rightly  employed,  which  would  otherwife  have 

c  This  notion  is  perhaps  too  refined.  The  corporations  where  no  fpecinl  vifitor  is  ap< 

court  of  king's  bench,  from  it's  general  fu-  pointed.  But,  as  it's  judgments  are  liable  to 

perintendent  authority  where  other  jurifdic-  be  reverfed  by  writs  of  error,  it  wants  one 

tions  are  deficient,  has  power  to  regulate  all  of  the  efTential  marks  of  vifitntorial  power. 

N  n  n  defcended 


482  The    RIGHTS  BOOK!. 

defcended  to  the  vifitor  himfelf :  but,  if  the  founder  has  appoint- 
ed and  affigned  any  other  perfon  to  be  vifitor,  then  his  afiignee 
fo  appointed  is  inverted  with  all  the  founder's  power,  in  exclufion 
of  his  heir.  Eleemofynary  corporations  are  chiefly  hofpitals,  or 
colleges  in  the  univeriity.  Thefe  were  all  of  them  confidered  by 
the  popifh  clergy,  as  of  mere  ecclefiaftical  jurifdiction :  how- 
ever, the  law  of  the  land  judged  otherwife ;  and,  with  regard  to 
hofpitals,  it  has  long  been  held d,  that  if  the  hofpital  be  fpiritual, 
the  bilhop  {hall  vifit ;  but  if  lay,  the  patron.  This  right  of  lay 
patrons  was  indeed  abridged  by  ftatute  2  Hen.V  c.  i.  which  or- 
dained, that  the  ordinary  mould  vifit  all  hofpitals  lounded  by  fub- 
jects  ;  though  the  king's  right  was  referved,  to  vifit  by  his  com- 
mifTioners  fuch  as  were  of  royal  foundation.  But  the  fubj eft's 
right  was  in  part  reftored  by  flatute  14  Eliz.  c.  5.  which  directs 
the  biihop  to  vifit  fuch  hofpitals  only,  where  no  vifitor  is  ap- 
pointed by  the  founders  thereof:  and  all  the  hofpitals  founded  by 
virtue  of  the  ftatute  39  Eliz.  c.5.  are  to  be  vifited  by  fuch  perfons 
as  mall  be  nominated  by  the  refpective  founders.  But  ftill,  if  the 
founder  appoints  nobody,  the  bifhop  of  the  diocefe  muft  vifit6. 

COLLEGES  in  the  univerfities  (whatever  the  common  law 
may  now,  or  might  formerly,  judge)  were  certainly  confidered 
by  the  popim  clergy,  under  whofe  direction  they  were,  as  eccle- 
Jiaftical,  or  at  leaft  as  clerical^  corporations  -,  and  therefore  the 
right  of  vilitation  was  claimed  by  the  ordinary  of  the  diocefe. 
This  is  evident,  becaufe  in  many  of  our  moft  antient  colleges, 
where  the  founder  had  a  mind  to  fubject  them  to  a  vifitor  of  his 
own  nomination,  he  obtained  for  that  purpofe  a  papal  bulle  to 
exempt  them  from  the  jurifdiction  of  the  ordinary  ;  feveral  of 
which  are  ftill  preferved  in  the  archives  of  the  refpective  focieties. 
And  I  have  reafon  to  believe,  that  in  one  of  our  colleges,  (wherein 
the  bifhop  of  that  diocefe,  in  which  Oxford  was  formerly  com- 
prized, has  immemorially  exercifed  visitatorial  authority)  there  is 
no  fpecial  vifitor  appointed  by  the  college  ftatutes  :  fo  that  the 
bifhop's  interpofition  can  be  afcribed  to  nothing  elfe,  but  his  fup- 

"  Yearbook,  8Edw.HI.  28.    8Aff.29.  <  2  Inft.  725. 

pofed 


Ch.  i8.  of  PERSONS.  483 

pofed  title  as  ordinary  to  vifit  this,  among  other  ecclefiaftical 
foundations.  And  it  is  not  impoffible,  that  the  number  of  col- 
leges in  Cambridge,  which  are  vifited  by  the  bifhop  of  Ely,  may 
in  part  be  derived  from  the  fame  original, 

BUT,  whatever  might  be  formerly  the  opinion  of  the  clergy, 
it  is  now  held  as  eftablifhed  common  law,  that  colleges  are  lay 
corporations,  though  fometimes  totally  compofed  of  ecclefiaftical 
perfons ;  and  that  the  right  of  vifitation  does  not  arife  from  any 
principles  of  the  canon  law,  but  of  neceffity  was  created  by  the 
common  law  f.  And  yet  the  power  and  jurifdiction  of  vifitors  in 
colleges  was  left  fo  much  in  the  dark  at  common  law,  that  the 
whole  doctrine  was  very  unfettled  till  king  William's  time  -,  in 
the  iixth  year  of  whofe  reign,  the  famous  cafe  of  Philips  and  Bury 
happened g.  In  this  the  main  queftion  was,  whether  the  fentence 
of  the  bifhop  of  Exeter,  who  (as  vifitor)  had  deprived  doctor 
Bury  the  rector  of  Exeter  college,  could  be  examined  and  re- 
dreffed  by  the  court  of  king's  bench.  And  the  three  puifne  judges 
were  of  opinion,  that  it  might  be  reviewed,  for  that  the  vifitor's 
jurifdiction  could  not  exclude  the  common  law;  and  accordingly 
judgment  was  given  in  that  court.  But  the  lord  chief  juftice, 
Holt,  was  of  a  contrary  opinion  ;  and  held,  that  by  the  common 
law  the  office  of  vifitor  is  to  judge  according  to  the  ftatutes  of 
the  college,  and  to  expel  and  deprive  upon  jufl  occafions,  and  to 
hear  all  appeals  of  courfe  -,  and  that  from  him,  and  him  only, 
the  party  grieved  ought  to  have  redrefs  ;  the  founder  having  re- 
pofed  in  him  fo  entire  a  confidence,  that  he  will  adminifter  juf- 
tice impartially,  that  his  determinations  are  final,  and  examinable 
in  no  other  court  whatfoever.  And,  upon  this,  a  writ  of  error 
being  brought  in  the  houfe  of  lords,  they  reverfed  the  judgment 
of  the  court  of  king's  bench,  and  concurred  in  fir  John  Holt's 
opinion.  And  to  this  leading  cafe  all  fubfequent  determinations 
have  been  conformable.  But,  where  the  vifitor  is  under  a  tempo- 
rary difability,  there  the  court  of  king's  bench  will  interpofe,  to 

f  Lord  Raym.  8.  6  LordRaym.y.  4Mod.io6.  Showery. 

Skinn.407-  Salk.  403.  Carthew.  180. 

N  n  n  2  prevent 


484  ?$£    RIGHTS  BOOK!. 

prevent  a  defect  of  juftice1'.  Allb  it  is  faid  ',  that  if  a  founder  of 
an  eleemofynary  foundation  appoints  a  viiitor,  and  limits  his  ju- 
rifdidtion  by  rules  and  ftatutes,  if  the  vifitor  in  his  fentence  ex- 
ceeds thofe  rules,  an  action  lies  againft  him  ;  but  it  is  otherwife, 
where  he  miilakes  in  a  thing  within  his  power. 

IV.  WE  come  now,  in  the  laft  place,  to  confider  how  cor- 
porations may  be  diflblved.  Any  particular  member  may  be  dif- 
franchifed,  or  lofe  his  place  in  the  corporation,  by  acting  con- 
trary to  the  laws  of  the  fociety,  or  the  laws  of  the  land  ;  or  he 
may  refign  it  by  his  own  voluntary  actk.  But  the  body  politic 
may  alfo  itfelf  be  diflblved  in  feveral  ways  j  which  diflblution  is 
the  civil  death  of  the  corporation  :  and  in  this  cafe  their  lands 
and  tenements  mall  revert  to  the  perfon,  or  his  heirs,  who  granted 
them  to  the  corporation  ;  for  the  law  doth  annex  a  condition  to 
every  fuch  grant,  that  if  the  corporation  be  diflblved,  the  grantor 
mall  have  the  lands  again,  becaufe  the  caufe  of  the  grant  faileth  l. 
The  grant  is  indeed  only  during  the  life  of  the  corporation  ; 
which  may  endure  for  ever  :  but,  when  that  life  is  determined  by 
the  diflblution  of  the  body  politic,  the  grantor  takes  it  back  by 
reverlion,  as  in  the  cafe  of  every  other  grant  for  life.  And  hence 
it  appears  how  injurious,  as  well  to  private  as  public  rights,  thofe 
ftatutes  were,  which  veiled  in  king  Henry  VIII,  inftead  of  the 
heirs  of  the  founder,  the  lands  of  the  diflblved  monasteries.  The 
debts  of  a  corporation,  either  to  or  from  it,  are  totally  extin- 
guifhed  by  it's  diflblution  ;  fo  that  the  members  thereof  cannot 
recover,  or  be  charged  with  them,  in  their  natural  capacities  m  : 
agreeable  to  that  maxim  of  the  civil  law n,  "Ji  quid  tiniverjitati 
"  debetur,  Jingidls  non  debetur  ;  nee,  quod  debet  univerjitas,  Jinguli 
"  debent:' 

A  CORPORAT  ION  may  be  diflblved,  i .  By  act  of  parlia- 
ment, which  is  boundlefs  in  it's  operations.  2.  By  the  natural 
death  of  all  it's  members,  in  cafe  of  an  aggregate  corporation. 

k  Stra.  797.  '  Co.  Litt.  13. 

'  2  Lutvv.  1566.  m   i  Lev.  237. 

k  uRep.98.  •  Ff.  3-4.7.  3.    By 


Ch.  i8.  of    PERSONS.  485 

3. 'By  furrender  of  it's  franchifes  into  the  hands  of  the  king, 
which  is  a  kind  of  fuicide.  4.  By  forfeiture  of  it's  charter, 
.  through  negligence  or  abufe  of  it's  franchifes  ;  in  which  cafe 
the  law  judges  that  the  body  politic  has  broken  the  condition 
upon  which  it  was  incorporated,  and  thereupon  the  incorporation 
is  void.  And  the  regular  courfe  is  to  bring  an  information  in  na- 
ture of  a  writ  of  quo  ivarranto,  to  enquire  by  what  w'arrant  the 
members  now  exercife  their  corporate  power,  having  forfeited  it 
by  fuch  and  fuch  proceedings.  The  exertion  of  this  act  of  law, 
for  the  purpofes  of  the  {rate,  in  the  reigns  of  king  Charles  and 
king  James  the  fecond,  particularly  by  feiling  the  charter  of  the 
city  of  London,  gave  great  and  jufl  offence  ;  though  perhaps,  in 
flrictnefs  of  law,  the  proceedings  in  moft  of  them  were  fuffi- 
ciently  regular  :  but  the  judgment  againft  that  of  London  was 
reverfed  by  act  of  parliament  °  after  the  revolution  ;  and  by  the 
fame  ftate  it  is  enacted,  that  the  franchifes  of  the  city  of  Lon- 
don mall  never  more  be  forfeited  for  any  caufe  whatfoever.  And,, 
becaufe  by  the  common  law  corporations  were  diflblved,  in  cafe 
the  mayor  or  head  officer  was  not  duly  elected  on  the  day  ap- 
pointed in  the  charter  or  eftablimed  by  prefcription,  it  is  now 
provided  p,  that  for  the  future  no  corporation  ihall  be  diflblved 
upon  that  account  j  and  ample  directions  are  given  for  appoint- 
ing a  new  officer,  in  cafe  there  be  no  election,  or  a  void  one,, 
made  upon  the  charter  or  prefcriptive  day. 

c  Stat.  2  W.  &  M.  c.  8.  t  Stat.   1 1  Geo.  I.  c.  4. 


THE    END    OF    THE    FIRST    BOOK.